Petition — Washington v. Louisiana
Supreme Court brief1976
Ask Donna
What actually matters in this document.
Text
oe ee ae eee
& ® re
SPrLegD =~
JAN 28 1976
edie MICHAEL RODAK, JR., CLERK
SUPREME COURT OF THE UNITED STATES
-—-++--
October Term, 1975
| no. IH-6123
JOHNSON WASHINGTON, JR.,
Petitioner,
-V.7
STATE OF LOUISIANA,
Respondent
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF LOUISIANA
JACQUES F. BEZOU
1304 First National Bank of
Commerce Building
New Orleans, Louisiana 70112
JACK GREENBERG
JAMES M. NABRIT, IIl
DAVID E. KENDALL
PEGGY C. DAVIS
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
Stanford University Law School
t Stanford, California 94305
ATTORNEYS FOR PETITIONER
' Statement
LE OF CONTENTS
Batetsen Ge Gebesas BERG oocc cecccsscesesescesecee
Jurisdiction “ener evneneeneeeeeeneeneneeaeeeeeenenwneneneneenwe errr er!
Questions Presented *eneevneneeneeeneneeneaneenewnenewneewneanenenenwnannwnennee
Constitutional and Statutory Provisions Involved..
How the Federal Questions Were Raised and Decided
Below ld ee oe |
Reasons for Granting the Writ .ccccccccccceccccecce
The Court Should Grant Certiorari To
Consider Whether The Imposition And
Carrying Out Of The Sentence of Death
For The Crime Of First Degree Murder
Under The Law Of Louisiana Violates
The Eighth Or Fourteenth Amendment To
The Constitution Of The United States....
The Court Should Grant Certiorari To
Consider Whether The Exclusion For Cause
Of Fourteen Veniremen On The Grounds Of
Their Expressed Attitudes Toward The
Death Penalty Violated Petitioner's
Rights Under The Sixth Or Fourteenth
Amendment To The Constitution Of The
CRSOGE BORGES 06 ccbeesecnccceoceseéceseses
The Test of Exclusion Applied by
the Court Below Did Not Meet the
Minimum Standards Required by the
Constitution As Construed in
Witherspoon v. Illinois, 391 U.S.
510 (1968) ere ee ee eee eee eee eee ee
The Exclusion of Veniremen with
Conscientious Scruples Against
Capital Punishment Deprived
Petitioner of His Sixth Amendment
Right to a Representative Jury ......
Page
22
25
25
28
28
35
Iit.
The Court Should Grant Certiorari To
Consider Whether Introduction At
Petitioner's Capital Trial Of His
Written Confession And Of A Pistol
Which Petitioner Retrieved For The
Police Violated His Fifth Amendment
Right Against Compulsory Self Incrim-
ination When This Statement And
Physical Evidence Were Obtained As
A Direct Consequence Of An Earlier
Coerced Oral Confession Which Was
ae DE ob cd cctdeuecaccoesesseceees
Conclusion erreereeeveeeeeeeeeeaeeseeeeeeeeeeeeeeeeeee
Appendix
A: State v. Washington, La. _, 321 So.
2d 763 [Mitte Peee een aneeéeenene Gb ame
Appendix
for
No.
Appendix
B: Pp. 17-30 and pp. 42-43, Petition
Writ of Certiorari, Selman v. Louisiana,
74-6065 (filed February 24, 1975)........
C: Selected pages of jury selection
transcript showing exclusion for cause of
fourteen veniremen at petitioner's trial
on account of conscientious scruples
against capital punishment ............cccccee
Appendix
_ *
Appendix
D: Commonwealth v. O'Neal, _Mass._,
E.2d __, Mass. Adv. Sh. (1975)......c.e0-
E: Pp. 72-78, Petition for Writ of
Certiorari, Hallman v. Florida, No. 74-6168
(filed March 1l,
ii
a a ere
Page
36
47
la
lb
le
1d
le
Page
Beecher v. Alabama, 389 U.S. 35 (1967) ...ccccccccccecce 44
Beecher v. Alabama, 408 U.S. 234 (1972) .........cee0e. 44
Blackburn v. Alabama, 361 U.S. 199 (1960).............. 46
Boulden v. Holman, 394 U.S. 478 (1969).......ccccceceee 31
Brown v. Illinois, _U.S.__, 45 L.Ed.2d 416 (1975)..... 44
Clewis v. Texas, 306 U.8. FO7 (1967) wccccccccccccececes 44
Commonwealth 'v. O'Neal, _ Mass._, _ N.E.2d _, Mass.
Adv. Sh. (1975) 3502 ree ee eee ewe ewnewneewr ewer wr rere 27
Darwin v. Connecticut, 391 U.S. 346 (1968)............- 44
Purman v. Georgia, 408 U.S. 238 (1972). ..cccccccccccces 25
Gregg v. Georgia, No. 74-6257 (cert. granted Jan. 22,
| ee Nn en ee ee 26
Hallman v. Florida, No. 74-6168 (filed March ll, 1975). 35
Harrison v. United States, 392 U.S. 219 (1968)......... 43,44
Jameen V. Beaune, BFS U.8. BS (19G6) ccccccceccccorvecss 46
Jurek v. Texas, No. 75-5394 (cert. granted Jan. 22,
De 006 068060640h6606 600006486 684886 O Sees 26
Kastigar v. United States, 406 U.S. 441 (1972)......... 46
Manness v. Meyers, __U.S.__, 42 L.Ed.2d 574 (1975)..... 46
Michigan v. Tucker, 417 U.S. 433 (1974).......ccccccces 45
Miranda v. Arizona, 384 U.S. 436 (1966) ............--. 18,36,
39,41,44
People v. Anderson, 6 Cal.3d 628, 493 P.2d 880,
100 Cal. Rptr. 152 [66606060 666000660806 27
Proffitt v. Florida, No. 75-5706 (cert. granted
Jan. 22, Be 66:50 606600604056656606586660 0008 26
Roberts v. Louisiana, No. 75-5844 (cert. granted
Jan. 22, De 660004600060 0000060060066060 66008 25,26
Robinson v. Tennessee, 392 U.S. 666 (1968)...........6- 44
iii
Selman v. Louisiana, No. 74-6065 (filed Feb.
me Pere Cee TTT TTT TTT TTT Tri TTTrTT Tree err
Spano v. New York, 360 U.S. 315 (1959) .....cccccccccces
Stein v. New York, 346 U.S. 156 (1953)....cccccccccccce
United States v. Bayer, 331 U.S. 532 (1947).........ee-
Witherspoon v. Illinois, 391 U.S. 510 (1968)...........
Woodson v. North Carolina, No. 75-5491 (cert.
granted Jan. 22, 1976)....... TrYTTTITTTTrrrrte
Statutes:
La. Rev. Stat. Ann. §14:29 (1574) .....cccccccccccccces
BASSO (ISPS) cccccoceccces eocccccse
§14:30.1 (1974)..... ecvccvecccsocse
$14231 (1974) ..ccccccce eoccccccoces
§14:42 (1974)...... : eecccccces cccce
GASsSE7 (LSS7) .ccccccecccces eecccee °
G135sS66 (1975S supp.) cccccccccceccs ee
SSSeTSS (ISST) co ccccvcceqeseccesece °
§15:570 (1974 supp.). ...... eccccecs
La. Code Crim. Proc. Ann. art. 598 (1975 supp.)....... °
SEC. GOS (I9G7F) ccccccccceses
art. 804 (1967) ....cccccccececs
art. 809 (1967)...........26-
art. 814 (1975 supp.) .......
art. 814(A)(1)(1975 supp.)...
art. 817 (1975 supp.)........
Mass. Declaration of Rights
Articles 1, 10, 12, 26........ eoccccces ecccece
Mass. Gen. L. C.265, §2 ...see. TYTTTTiTT PTTTTTTTTL TTT TT
iv
Page
3,22
8,26
27
27
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1975
No. 75-
! JOHNSON WASHINGTON, JR.,
Petitioner,
-V.-
STATE OF LOUISIANA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF LOUISIANA
Petitioner prays that a writ of certiorari issue to review
the judgment of the Supreme Court of the State of Louisiana
entered on October l, 1975.
CITATION TO OPINION BELOW
The opinion of the Supreme Court of Louisiana is reported
at _ La.__, 321 So.2d 763 (1975), and is set out in Appendix
A hereto, pp. la-6a, infra.
JURISDICTION '
The judgment of the Supreme Court of the State of Louisiana
was entered on October 1, 1975, and is set out in Appendix A
hereto. On December 18, 1975, Mr. Justice Powell entered an
order extending the time in which to file apetition for a writ
| of certiorari in this case to and including January 29, 1976.
'
'
4
'
Jurisdiction of this Court is invoked under 28 U.S.C. §1257(3),.
petitioner having asser*ed below and asserting here deprivation
of rights secured by the Constitution of the United States.
QUESTIONS PRESENTED
1. Whether the imposition and carrying out of the sentence
of death for the crime of first degree murder under the law of
Louisiana violates the Eighth or Fourteenth Amendment to the
Constitution of the United States?
2. Whether the exclusion for cause of fourteen veniremen
on the grounds of their expressed attitudes toward the death
penalty violated petitioner's rights under the Sixth or Four-
teenth Amendment to the Constitution of the United States?
3. Whether the introduction at petitioner's capital
trial of his written confession and of a pistol which petitioner
retrieved for the police violated his Fifth Amendment right
against compulsory self incrimination when this statement
and physical evidence were obtained as a direct consequence
of an earlier coerced oral confession which was not introduced?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. This case involves the Fifth, Sixth, Eighth
and Fourteenth Amendments to the Constitution of the United
States.
This case also irvolves the following provisions of the
Revised Statutes Annotated and Code of Criminal Procedure of
Louisiana.
eee
—
La. Rev. Stat. Ann. §14:29 (1974):
“Homicide; general provisions. Homicide is the
killing of a human being by the act, procurement
or culpable omission of another. Criminal homicide
is of four grades:
(1) First degree murder
(2) Second degree murder
(3) Manslaughter
(4) Negligent homicide.
No liability for criminal homicide shall attach
unless the injured party dies within a year after
the injury is inflicted."
La. Rev. Stat. Ann. §14:30 (1974):
“First degree murder. First degree murder is
the killing of a human being:
(1) When the offender has a specific intent
to kill or to inflict great bodily harm and is engaged
in the perpetration or attempted perpetration of
aggravated kidnapping, aggravated rape or armed
robbery; or
(2) When the offender has a specific intent
to kill, or to inflict great bodily harm upon, a
fireman or a peace officer who was engaged in the
performance of his lawful duties; or —
(3) Where the offender has a specific intent
to kill or to inflict great bodily harm and has
previously been convicted of an unrelated murder
or is serving a life sentence; or
(4) When the offender has a specific intent
to kill or to inflict great bodily harm upon more
than one person;
(5) When the offender has specific intent to
commit murder and has been offered or has received
anything of value for committing the murder.
For the purposes of paragraph (2) herein, the term
peace officer shall be defined and include any
constable, sheriff, deputy sheriff, local or state
policeman, game warden, federal law enforcement
officer, jail or prison guard, parole officer,
probation officer, judge, district attorney,
assistant district attorney or district attorneys’
investigator.
° ——.
——
Whoever commits the crime of first degree
murder shall be punished by death.” 1/
La. Rev. Stat. Ann. §14:30.1 (1974):
"Second degree murder. Second degree murder
is the killing of a human being:
(1)When the offender has a specific
intent to kill or to inflict great bodily
| harm; or
(2)When the offender is engaged in the
perpetration or attempted perpetration of
aggravated arson, aggravated burglary, aggravated
kidnapping, aggravated escape, armed robbery, or
| simple robbery, even though he has ro intent to
kill.
Whoever commits the crime of second degree
murder shall be imprisoned at hard labor for life
and shall not be eligible for parole, probation
or suspension of sentence for a period of twenty
i 2 f On July 17, 1975, the Louisiana legislature enacted Act. 327
(H.B. No. 320) which provides:
“Section 1. Section 30 of Title 14 of the Louisiana
Revised Statutes of 1950 is hereby amended and re-
enacted to read as follows:
§ 30. First degree murder
First degree murder is the killing of a human
being:
(1) When the offender has a specific
intent to kill or to inflict great bodily harm
and he is engaged in the perpetration or attempted
perpetration of aggravated kidnapping, aggravated
rape, aggravated burglary, or armed robbery; or
o . *
For the purposes of Paragraph (2) hereof, the
term peace officer shall be defined and include
any constable, sheriff, deputy sheriff, local or
state policeman, game warden, federal law enforce-
ment officer, jail or prison guard, parole officer,
i probation officer, judge, district attorney, assistant
district attorney, or district attorneys' investigator.
Whoever commits the crime of first degree murder
1 shall be punished by death.
i Section 2. All laws or parts of laws in conflict
herewith are hereby repealed.” |
, Louisiana Session Laws 1975 (West's Louisiana Session Law Service
Hl 1975 at 570-571).
; i
|
|
————————
years." 2/
La. Rev. Stat. Ann. §14:31 (1974):
“Manslaughter. Manslaughter is:
(1) A homicide which would be murder under
either Article 30 (first degree murder) or
Article 30.1 (second degree murder), but the |
offense is committed in sudden passion or heat
of blood immediately caused by provocation
sufficient to deprive an average person of his
self control and cool reflection. Provocation
shall noc reduce a homicide to manslaughter if
the jury finds that the offender's blood had
actually cooled, or that an average person's
blood's would have cooled, at the time the
offense was committed; or
(2) A homicide committed, without any intent
to cause death or great bodily harm.
(a) When the offender is engaged in the
perpetration or attempted perpetration of any
felony not enumerated in Articles 30 or 30.1, or
of any intentional misdemeanor directly affecting
the person; or
(b) When the offender is resisting lawful
2/ Om July 17, 1975, the Louisiana Legislature enacted Act
380 (H.B. No. 311) which provides:
"Section 1. Section 30.1 of Title 14 of the
Louisiana Revised Statutes of 1950 is hereby
amended and reenacted to read as follows:
§ 30.1 Second degree murder
Second degree murder is the killing of a human
being:
(1) When the offender has a specific intent
to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the
perpetration or attempted perpetration of .
aggravated arson, aggravated burglary, aggravated
kidnapping, aggravated escape, armed robbery, or
simple robbery, even though he has no intent to
kill.
Whoever commits the crime of second degree murder
shall be imprisoned at hard labor for life and shall
not be eligible for parole, probation, or suspension
of sentence for a period of forty years.
Section 2. All laws or parts of laws in conflict
herewith are hereby repealed.”
Louisiana Session Laws 1975 (West's Louisiana Session Law Service
1975 at 665).
arrest by means, or in a manner, not
inherently dangerous, and the circumstances
are such that the kiliing would not be nurder
under Articles 30 or 30.1
Whoever commits manslaughter shall be imprisoned
at hard labor for not more than twenty-one years."
i
La. Rev. Stat. Ann. §15:567 (1967):
!
"Conditions precedent to execution; warrant of
governor. No person sentenced to death shall be
executed until a certified copy of the indictment,
verdict and sentence shall have been sent to the
governor, and a warrant shall have been issued by
him, under the seal of the state, directed to the
warden of the Louisiana State Penitentiary at
Angola, commanding the warden to cause the execution
to be done on the person so condemned in all things
according to the judgment against him, and upon the
date named in said warrant."
La. Rev. Stat. Ann. §15:568 (1975 supp.):
“Execution of death sentence; prior confinement
of offender. The director of the Department of
Corrections, or a competent person selected by
him, shall execute the offender in conformity
with the deatii warrant issued in the case. Until
the time of his execution, the Department of
Corrections shall incarcerate the offender in a
manner affording maximum protection to the general
public, the employees of the department, and the
security of the institution."
La Rev. Stat. Ann. §15:569 (1967):
“Place for execution of death sentence; manner
of execution. Every sentence of death imposed in
this state shall be by electrocution; that is,
causing to pass through the body of the person
convicted a current of electricity of sufficient
intensity to cause death, and the application and
continuation of such current through the body of
the person convicted until such person is dead.
Every sentence of death imposed in this state shall
be executed at the Louisiana State Penitentiary at
Angola. Every execution shall be made in a room
entirely cut off from view of all except those
permitted by law to be in said room.”
La. Rev. Stat. Ann. §15:570 (1974 supp.):
“Officials and witnesses present at execution;
minors excluded. Every execution of the death
sentence shall take place in the presence of the
warden of the Louisiana State Penitentiary at
Angola, or a competent person elected by him, the
oe @«
coroner of the parish of West Feliciana, or his
deputy, and a physician summoned by the warden
of the Louisiana State Penitentiary at Angola,
the operator of the electric chair who shall be
a competent electrician who shall have not been
previously convicted of a felony, a priest or
minister of the gospel, if the convict so requests
it, and not less than five nor more than seven
other witnesses, all citizens of the State of
Louisiana; no person under the age of eighteen
years shall be allowed within said execution room
during the time of execution."
La. Code Crim. Proc. Ann. art. 598 (1975 supp.):
"Effect of verdict of lesser offense. When a person
is found guilty of a lesser degree of the offense
charged, the verdict or judgment of the court is
an acquittal of all greater offenses charged in the
indictment and the defendant cannot thereafter be
tried for those offenses on a new trial.”
La. Code Crim. Proc. Ann. art. 803 (1967):
"Same [General charge; scope]; charge as to
included minor offenses and plea of insanity.
When a count in an indictment sets out an
offense which includes other offenses of which
the accused could be found guilty under the pro-
visions of Article 814 or 815, the court shall
charge the jury as to the law applicable to each
offense ...."
La. Code Crim. Proc. Ann. art. 804 (1967):
La.
“Same; charge as to presumption of innocence,
reasonable doubt, and several grades of offense ....
(B) When there are several grades of an offense
contained in a single count, the court shall charge
the jury as to each grade of which the defendant
could be found guilty."
Code Crim. Proc. Ann. art. 809 (1967):
“Judge to give jury written list of responsive
verdicts. After charging the jury, the judge shall
give the jury a written list of the verdicts responsive
to each offense charged, with each separately stated.
The list shall be taken into the jury room for use
by the jury during its deliberation."
La. Code Crim. Proc. Ann. art. 814 (1975 supp.):
"Responsive verdicts; in particular. A. The
on” ’ responsive verdicts which may be rendered
where the indictment charges the following
offenses are:
1. First Degree Murder:
Guilty.
Guilty of second degree murder.
Guilty of manslaughter.
Not guilty ... ,."
La. Code Crim. Proc. Ann. art. 817 (1975 supp.):
"Qualifying verdicts. Any qualification of or
addition to a verdict of guilty, beyond a speci-
fication of the offense as to which the verdict
is found, is without effect upon the finding."
STATEMENT
This is a petition for a writ of certiorari to review
the judgment of the Supreme Court of Louisiana, entered on
October 1, 1975, affirming petitioner's conviction and death
sentence. Petitioner, Johnson Washington, Jr., a twenty-year-old
black man, was convicted of the first degree murder of a white
St. Charles Parish deputy sheriff, James A. Arterbury, and was
sentenced to death on February 4, 1974, in the Twenty Ninth
Judicial District Court, Parish of St. Charles, Louisiana.
During the late afternoon and early evening of July 4, 1973
3/
a "record hop," T. 13, was being held at the Nitecap Lounge in
Killona, Louisiana for the benefit of the Killona Snipers Softball
3/ The transcript in this case is divided into a number of
separately paginated sections. Hereinafter, reference to the
535 page trial transcript will be prefaced by "T." References
to other sections of the transcript will be as follows: sanity
hearing -- San. T.; change of venue hearing -- C.V.T.; motion to
Suppress hearing -- M.S.T.; jury selection -- J.s.7.; sentencing
hearing -- Sent. T.
|
Club, T. 68. ‘he admission price of fifty cents was being
collected at the door by one Clarence Campbell. Ibid. About 8:00
p-m., petitioner and three of his relatives (his cousins,
Rudolph Johnson and James Johnson, and his uncle, James
Washington), arrived at the Lounge and, according to Campbell,
attempted to enter without i 69. After a brief argu-
ment, Rudolph Johnson knocked the money box out of Campbell's
hand, and petitioner charged Campbell with a coke bottle. In
the ensuing melee (which caused considerable damage to the
inside of the Lounge, T. 19),Campbell knocked both of his
assailants down and physically threw them out of the Lounge.
T. 70. The owner of the Lounge, Mrs. Lucille Roberts, testified
that petitioner and Rudolph Johnson drew knives and began
“switching” them at her and at Campbel!, T. 14, 71, and
threatened to "cut" then, T. 71. A loud argument then took place
and Rudolph Johnson declared finally that he was going home:
""But when I come back . .. I'm going to tear this mother-
fucker down . .. I'm going to burn it up.'" T. 14-15. Petitioner
4/ Campbell testified that Rudolph Johnson paid him a dollar
(it is unclear from the record whether Rudolph Johnson entered
the Lounge at this point) and that petitioner then tried to enter
the Lounge. Campbell stopped petitioner, and then petitioner
and Rudolph Johnson conferred outside the Lounge. Rudolph
Johnson then walked back to Campbell and demanded $4.50 in
change and accused Campbell of cheating him. T. 69-70. The
fight started at this point.
was present at this point, but he uttered no threats. T. 15.
Mrs. Roberts and Campbell went back inside the Lounge,
and Mrs. Roberts telephoned the police “and told them to send
help right away." T. 16. A short time later, Deputy Arterbury
drove up in a marked St. Charles Parish sheriff's car. He was
dressed in his uniform, was wearing a pistol, and was carrying
either a pencil and pad, T. 18, or a flashlight, T. 82-A, in
his hands when he entered the Lounge. Mrs. Roberts told him
""All I know it [the dispute] is over some change.'" T. 18.
Campbell said he wanted "'these mens'" arrested because they
"tried to cut... (his) leg off,'" but Deputy Arterbury
told him he would have to file a complaint with the Justice
of the Peace, since he had only come to the Lounge to see "'if
they doing anything wrong and don't want to abide by the law.'"
T. 18-19. In that case, he added, "'I'll have to taken them to
jail.'" T. 19.
By this time, a large and unruly crowd had gathered out-
side, which was “hollering and yelling and making a lot of
noise." Ibid. Mrs. Roberts heard someone yell, “'Kill-kill that
son-of-a-bitch [Deputy Arterbury] . .. I say kill him,'" and
""'They ought to set that mother-fucker's [Mrs. Roberts' Lounge]
on fire . . . and burn that mother-fucker down .. . Cause
she ain't got no goddam business to call that policeman. '”
T. 20. Deputy Arterbury walked back out to his patrol car and
took his shotgun from the trunk, pumping a shell into the
» We
chamber, T. 124. He radioed headquarters that “he might need
assistance," T. 147, and urged the deputy who responded to
the call to "‘Hurry it up,'" T. 148.
Deputy Arterbury then turned to face the crowd, his
shotgun pointed up into the air. He asked where “Pop Johnson"
(petitioner's nickname) was, and petitioner's father, Johnson
Washington, Sr., demanded from the crowd, "'What do you want
with Pop Johnson?'"” T. 89. The deputy repeated his question,
and petitioner's father repeated his response. Ibid. At this
point, Mrs. Roberts' daughter ran into the Lounge and told
her mother that it "'looks like they are going to try to
kill the policeman.'" T. 20. Mrs. Roberts phoned the sheriff's
office to "'Come as fast as you can .. . The officer is up
here in trouble,'” and then she went outside with a “pool
stick" in her hand. Ibid. She heard Deputy Arterbury tell
the crowd, "'I didn't come here for no trouble,'" ibid.,
and another witness heard him declare that “he know everybody
been drinking, that it was the 4th of July, know they'd been
drinking and doing all that stuff, just came over there to
try to cool everything down.” T. 126.
Mrs. Roberts told the deputy to come into her yard for
safety, but as he crossed a shallow ditch, the crowd ("a whole
lot of men, women, everybody screaming," T. 127) ‘surged around
him, and petitioner's father grabbed the shotgun and attempted
to wrest it from his grasp. The people nearest the deputy
(a group which included petitioner, Rudolph Johnson, and James
Washington) also grabbed the shotgun, and it went off while
oe &2 «
‘ ;
* H
pointed in the air. T. 22. Then, according to petitioner's
twelve-year-old cousin, Albert Washington, petitioner pulled
Arterbury's .357 magnum pistol from its holster and shot
3/ |
the deputy once in the back with it.
The crowd scattered. Another cousin of petitioner's
Ronald addi” ciate that he was in the crowd around
the deputy when the shooting occurred (he heard only one
shot, however, T. 128). T. 124-120. As he “took off and started
running,” T. 130, however, petitioner handed him a pistol:
"(thle just told me to take it, take it and put it somewhere."
T. 131. Ronald Johnson hid the pistol in some grass near
Clarence Campbell's house, which was a short distance away
from the scene of the shooting. Ibid. Later that evening,
Ronald Johnson heard his brother James Johnson ask petitioner
“what had happened, who he had shot," ibid., and petitioner
“said that he had did it . .. . Shot that deputy.” T. 132.
Petitioner then had Ronald Johnson go back and retrieve the
pistol and said they must “try to find a place and hide it,
throw it away somewhere.” T. 133. As the three drove around
5/ Albert Washington was the only person who testified that
he actually saw petitioner shoot Deputy Arterbury. Although
it was “dark out there," “they had a light out there," and he
was able to see petitioner behind Deputy Arterbury, in the
midst of a crowd of about twenty people. T. 108. Albert
Washington also testified that he heard a total of four shots
T. 111, in all. All the rest of the State's evidence tended
to establish, however, that only two shots (one from the shot-
gun, one from the pistol) had been fired. T. 335, 355.
6/ Ronald Johnson was originally charged with the murder of
Deputy Arterbury, T. 135, but he was “booked but never billed
{i.e. indicted)", T. 118, since he was granted immunity, ibid.
o 29 «
looking for Rudolph Johnson (Ronald's and James‘ brother),
petitioner threw the pistol into the Waterford Canal from a
wooden bridge near the Killona power plant. T. 134.
When the deputy who had been sent to Arterbury's aid
arrived on the scene about 8:40 p.m. and found Arterbury
i radioed headquarters to “get the whole force out",
T. 148, and a massive night-long manhunt followed in which
a number of suspects in the Arterbury shooting were arrested
and taken to the sheriff's office for questioning. One
detective recalled that "[j]Just about everybody was out that
night." T. 294.
Detective V.J. St. Pierre arrived at the Nitecap Lounge
about 9:00 p.m. He took several eye witnesses to the police
station, and as a result of interrogations there, he proceeded
at about 11:55 p.m. to petitioner's father's house (where
petitioner also lived) with several other officers to arrest
petitioner and his father. Detective St. Pierre saw petitioner
sitting in a cayzand as deputies approached the car with their
pistols drawn,St.Pienp told petitioner he was under arrest for
murder. M.S.T. 86. Petitioner offered "resistance," ibid.,
and had to be pulled out of the car, whereupon he was hand-
cuffed and had his “Miranda warnings," ibid., read to him by
St. Pierre. The detective asked him, “'Do you understand
these rights?'" and petitioner replied, “"Sure.'”" T. 232.
7/ An ambulance arrived for Deputy Arterbury about 30 to 45
minutes later. T. 159. On the way to the hospital, it had an
accident, and slid into the ditch, pitching to the floor the
stretcher on which the still-conscious deputy was lying. T.164.
He died in the hospital emergency room later that evening. An
autopsy revealed several bruises and superficial cuts due to
the ambulance accident, but in the pathologist's opinion,
Depu Arterbu died from blood loss due to the gun shot
Sind’ in hi back. T SFR 8° Because of powder posits
around the vOvRG «te East e OdE St ya ote Ren He anahes °
am She Be mster tan hal
-— —
ee e——EE—EEE
The record is somewhat unclear concerning events of the
next eight hours. Petitioner and his father were taken to the
sheriff's office, and Rudolph Johnson, James Johnson, and
James Washington were also arrested sometime during the
period. M.S.T. 4, 69. There was contradictory testimony as
8/
to whether petitioner was physically abused. According to
8/ Deputy Coleman, M.S.T. 11, 16, Deputy Laque (who was in
charge of the St. Charles Parish jail), M.S.T. 27, 28,
Detective St. Pierre, M.S.T. 75, T. 300, Deputy Kimble, M.S.T.
99, and Deputy Walker, T. 241, all testified that they saw no
one strike or physically mistreat petitioner. Deputy Zeringue
photographed petitioner as part of the booking process shortly
after his arrest, M.S.T. 22-23; petitioner appeared “normal,”
M.S.T. 25, to him and he did not notice any marks or bruises
on petitioner, M.S.T. 23. Dr. Wilson Couch examined petitioner
on August 17,1973, six weeks after the arrest, M.S.T. 43,because
petitioner had complained of the “recurrence of headaches and
difficulty sleeping." M.S.T. 42. According to Dr. Couch, peti-
tioner did not “show signs of abuse at the time." M.S.T. 43.
According to petitioner, however, at the time of his arrest,
while his hands were handcuffed behind him, he was hit from
behind by a police night stick,M.S.T. 38, and:
"Down here in the courthouse office and they
started hitting on me and beating me, hitting
me in my private [sic] and everything, kicking
me. Hitting me side the head with a flashlight.
Hitting me in my back with a stick ....
{TJhey kept me up all night beating on me and
beating on me and then two of them came and took
me to my cell and they handcuffed me and kicked
me in my stomach and cut my wind and I fell down
side the floor and they kicked me side my temple."
M.S.T. 39-40. Petitioner's father, Johnson Washington, Sr.,
testified that the police kept “whipping us [the suspects
being interrogated] and shoving us around,” M.S.T. 70,
throughout the night following the arrests and that he
saw some deputies “hit his [petitioner's] head up side the
wall,” M.S.T. 71. Other defense witnesses gave similar
testimony. Bernie Johnson, the 16 year old brother of
James Johnson, testified that he was beaten by deputies
when he was arrested for interrogation on the night of
July 4, 1973. T. 373. Mrs. Pricilla Stipes, petitioner's
aunt, testified that she saw the police beat Johnson Washington,
Sr., when they urrested him, T. 394, and that when she went
to the police station, she saw the deputies beating petitioner,
T. 395. She said that she protested to Deputy Coleman who
teld the other deputies to “'Lay off them,'" T. 395-396.
Roland Smith, Jr., testified that the deputies "(p)assed
a a
the jailer, petitioner spent part of the night alone in
his cell, M.S.T. 27. It is clear, however, that petitioner
was interrogated at various times throughout the night.
Deputy Howard Walker recalled seeing petitioner in the book-
ing room with a number of deputies ("They had a lot of
deputies in the courthouse ... . Almost all the deputies
on the police force was out that night,") T. 247. Deputy
Nelson Coleman, the only black deputy sheriff in the St.
Charles Parish sheriff's office, M.S.T. 13, remembered that
at least once that night he saw petitioner being questioned
by “several” deputies, M.S.T. 16: "[tJhey had just quite
a few people in there," T. 308. Petiticner's father testified
that the police kept asking "'Who shot? Who shot?'" M.S.T.
70. At some point during the early morning hours, petitioner
made an oral confession to Deputy Coleman (the substance
of this confession and the circumstances under which it
was given ere unclear, since the State elected not to entex
8/ cont'd.
a few licks on him [Johnson Washington, Sr.] when they were
putting him in the car" after his arrest. T. 409. Sheldon
Cannon testified that the police beat Johnson Washington,
Sr., when they arrested him, T. 412, and Mrs. Waldorlee
White saw "(t]he deputies hitting Washington," T. 415, at
the time of the arrest. Petitioner's mother, Mrs. Hazel
Washington, testified to seeing her husband an@ son physically
abused at the time of their arrest, and she said that “the
next morning,” she went to the jail and “heard my son [peti-
tioner] screaming and hc!lering up on the third floor." T.
435.
@ 18 «
Neer eee
9
the confession at trial, T. 260) admitting that he shot Deputy
Arterbury and threw the pistol into the canal. Deputy Coleman
sent for petitioner because the other deputies “told me that on
the record it had to be Rudolph Johnson .... or ‘Pops’ ..."
M.S.T. 17 (both sets of dots appear in transcript). Also, Deputy
Coleman had interrogated petitioner's uncle, James Washington,
who had told the deputy “‘it had to be one of ... [my] nephews'"
who shot Deputy Arterbury. M.S.T. 5. When there was some delay
in bringing petitioner from his cell, Coleman went there to
9/ Before Deputy Coleman testified at petitioner's trial, the
trial court gave him the following cautionary instructions, out-
side the presence of the jury:
“ (COURT) : Mr. Coleman, the purpose of asking
this and talking to you out of the
presence of the jury is that various
types of testimony have been alluded
to by the State with reference to your
testimony. The court only wants to take
the precaution of questioning you that
there is no misunderstanding on your
part that your testimony te“ay is to
refrain from any remarks relative to an
Oral confession. And that you are to
answer the questions that counsel, both
lawyers, put to you and limit yourself
to answering only the questions they ask
you. And not by way of inference or ref-
erence or any manner are you to refer
to the confession which the defendant
gave to you orally. Do you understand?
MR. COLEMAN:
I understand.
COURT:
I'm sure you do. You are to answer any
question that any lawyer asks you. I
mean, if they specifically ask you about
an oral confession you can do nothing but
answer their question. But what I'm warn-
ing you as - I don't want you to inadvert-
ently refer to it when you are not asked
to do that. OK?
MR. COLEMAN: OK.”
— le ie i oe se
10/
question petitioner. He later testified that petitioner was
not “crying, but he looked to me like somewhat on the nervous
side,” and that petitioner was “(n]Jot shaking, no, but you could
that [sic], that he was upset in some way.” M.S.T. 16. After
petitioner's oral confession, Coleman and other deputies took
il/
him to the Waterford Canal where petitioner dove into the water
10/ The testimony of this witness is somewhat confusing. On direct
examination, at the motion to suppress hearing, he testified that
during the night petitioner “kept saying he wanted to talk to me,"
M.S.T. 3, and that petitioner had said "'Mr. Nelson, I want to
talk to you,'" M.S.T. 5, just before he confessed. Coleman added,
however, that before the confession, “I sent a deputy up to get
him to bring him [petitioner] down, to try to question him to
try to find out did he kill the deputy.” Ibid. On redirect exam-
ination, it became clear that Coleman, and not petitioner, had
initiated the conversation that led to the confession:
“THE COURT:
Well, the court doesn't think he [Deputy
Coleman] answered it. The question was,
‘Did you go up there?’ and the answer
the state is looking for and the response
I am looking for is, ‘Did this man [peti-
tioner] send for you and did you decide
to go up and question him?[{'] You never
replied.
Mr. Coleman:
A: No, sir. He did not send for me and I did
not intend to go up and question him. I
said, ‘I sent for him and when they did not
come for so long I went to see why they were
so long.[']
THE COURT:
Q: He did not ask to talk to you.
A: No, sir. Not until after I went back there."
M.S.T. 18.
ll/ Petitioner asserted, M.S.T. 41, and Deputy Coleman denied,
M.S.T. 12, that a pistol had been fired at petitioner while he
was in the water.
e 19 «
|
and recovered Deputy Arterbury's pistol. M.S.T. 10. A ballistics
expert testified that the slug which was recovered at the
Arterbury autopsy had been fired from this pistol. T. 359.
As soon as petitioner returned from the canal, he was
interrogated by Detective St. Pierre in the presence of Deputy
Coleman. Petitioner first signed a "St. Charles Parish Voluntary
Statement" form, reciting that he had been advised of his consti-
tutional right to remain silent and to have a lawyer present and
had decided to make a voluntary statement. M.S.T. 76. He also
signed a “Warning of Rights" waiver form, reciting that between
7
8:19 a.m. and 8:20 a.m., T. 298, he had been given the warnings
12/
reguired by Miranda v. Arizona, 384 U.S. 436 (1966). Detective
St. Pierre testified that “After we make an arrest, we advise
a person orally of his rights and then when we get them back to
the courthouse we make them sign a written waiver of their
rights." M.S.T. 77. Petitioner then gave a statement, which
Detective St. Pierre reduced to writing and read back to peti-
tioner. M.S.T. 79, 95. Petitioner looked over the two page state-
ment and then signed it. M.S.T. 79. Detective St. Pierre recalled
that at the time he gave the statement, petitioner “was frightened.
He just killed a man... . I would say he was afraid of us."
T. 296. While denying that he was “angry” as he questioned
petitioner, the detective admitted that he had been "[vjery up-
set" and that he had been “vehement” in his questioning. T. 300.
Petitioner's statement, which was ruled voluntary and admi.sible
12/ Detective St. Pierre stated that he wrote the word “yes” after
each of the warnings, after petitioner said he understood the
warning. M.S.T. 78.
1
1 by the trial court, T. 283, was introduced against petitioner at
| his trial, over objection:
!
"8:20 A.M., July 5, 1973. Page No. l. The
following is a true statement of Johnson
Washington, Jr., colored male, date of birth
5-30-53, born in New Orieans and now lives at
Box 18, Killona, Louisiana. This statement
is in reference to the murder of Deputy Allen
Arterbury on the night of July 4, 1973.
Rudolph Johnson and myself went to the Night
Cap lounge to a record hop. I gave a dollar
bill to Clarence Campbell and he gave me fifty
cents back. Rudolph handed Clarence a $5.00 bill
and went sit [sic] at a table. A little while later
Rudolph asked Clarence for his change. Clarence
refused to give him his change. I left and went
to the bathroom. When I came back Rudolph and
Clarence were fighting. Jimmy Scott and me tried
to break the fight up.
Randolph [sic] and I went outside. Lucille Roberts
and her husband Carlton pulled a gun on us. Someone
called the Sheriff's office while this was going on.
Then the deputy arrived a short while later. He walked
inside the bar to talk to somebody. He stayed inside
for a while, then came out and asked who was ‘Pop’.
I said I was Pop. Then he said he would like to talk
to you and Randolph [sic]. The deputy went back inside
to get Campbell. I guess he wanted to talk to all three
of us at one time.
When the deputy came back outside he was by his self.
I guess he couldn't find Campbell. He walked to the
police car and opened the trunk and got out a shot gun.
He walked on the side of the police car - wait - he
walked on the side of the police unit with the shot
gun in his hand. We were talking to each other. He
told me he didn't want any trouble, he just wanted us
to cool down. Then my daddy, Johnson Washington, Sr.,
James Washington, Rudolph Johnson, they all tried to
take the gun away from the deputy. While my daddy,
James, Rudolph -- while my daddy, James, Rudolph were
fighting with the deputy, the shot gun went off in the
air. Then I moved to the side of the deputy, pulled
his gun out of his holster and shot him one time in the
| right back side. After the deputy fell to the ground
everybody started running. James Johnson, Ronald Johnson
and myself got into a car and drove to a canal in back
of Waterford and threw the gun away. Then I went home,
and the police came a short while after.
I have read the above pages - page and a half of
—
statements and found it to be true to the best
of my knowledge. I gave it with no physical
threats or promises against me, knowing it
could be used in court against me. I sign
i| this statement because it is true."
| T. 285-287.
Petitioner was indicted for the first degree murder of
13/
Deputy Arterbury on August 9, 1973. Upon petitioner's motion,
a Lunacy Commission of three doctors (one general practitioner
and two psychiatrists) was appointed to examine him. While the
Commission reported that petitioner was “not very bright," San.
T. 18, and that he had spent nearly three years at the “Leesville
School for Retardation", San. T. 18, 27, it concluded that he
was competent to stand trial, San. T. 8, 15, 21.
During the selection of the jury at petitioner's trial,
fourteen of the veniremen examined on voir dire were excused
by the trial court for cause upon motion of the State because
they expressed conscientious scruples concerning the imposition
14/
of the death penalty.
13/ Four of petitioner's relatives were also indicted for this
first degree murder by a St. Charles Parish grand jury on this
August 9, 1973. On March 8, 1974, however, James Johnson (Indict-
ment No. 30760) pleaded guilty to an accessory-after-the-fact-to
murder charge and was sentenced to one year in jail; James Wash-
ington (Indictment No. 30763) pleaded guilty to an identical charge
and was sentenced to eight months and five days in jail; Rudolph
Johnson (Indictment No. 30761) and Johnson Washington, Sr., (Indict-
ment No. 30764) both pleaded guilty to manslaughter and were
sentenced to, respectively, five years and eighteen years in the
penitentiary.
14/ The complete text of the voir dire examination of the death
penalty views of these veniremen is attached as Appendix C, infra.
See also note infra.
At the conclusion of the State's case, petitioner introduced
the testimony of ten witnesses. T. 367-440.
At the close of the evidence, the jury was instructed, in
accordance with Louisiana's “responsive verdicts" rule, La. Code
Crim. Proc. Ann. art. 814 (1975 supp.), see pp. 25-26 infra, that
it could return verdicts of guilty of first degree murder, second
degree murder, manslaughter, or not guilty. T. 509-511. The
trial court informed the jury that "[w]Jhoever commits the crime
of first degree murder shall be punished by death.” T. 510. The
jury, after the charge was reread to it during the course of its
deliberations, T. 518-531, found petitioner guilty of first
degree murder, T. 531, and the trial court subsequently sentenced
him to death, Sent. T. 4.
On October 1, 1975, the Supreme Court of Louisiana affirmed
is/
petitioner's conviction and death sentence.
15/ On October 28, 1975, the Chief Justice of the Louisiana
Supreme Court granted petitioner a stay of execution to enable
petitioner “to seek review of his conviction and sentence in
the Supreme Court of the United States, effective to December
15, 1975." On December 10, 1975, Mr. Justice Powell granted
petitioner a stay of execution “pending the timely filing
and disposition by this Court of a petition for a writ of
certiorari."
e 91 «
— oe eee
HOW THE FEDERAL QUESTIONS WERE RAISED
AND DECIDED BELOW
I. Petitioner filed a pre-trial motion to quash the indictment
| which alleged that the death penalty authorized in La. Rev. Stat.
Ann. §14:30 constituted “cruel and unusual punishment in viola-
tion of the Eighth Amendment of the United States Constitution.”
This motion was denied, J.S.T. 37, and petitioner assigned this
ruling as error: “[(t)he statute of the State of Louisiana, Act
109, Section 1, of 1973, is in contravention of the constitution
of the United States, especially the Eighth and Fourteenth Amend-
ments and it was, therefore, error for the trial court to deny
the motion to quash." (Assignment of Error No. 6). The Supreme
Court of Louisiana rejected this contention:
"(t]he . . . [petitioner] relies upon
Furman v. Georgia, 408 U.S. 238, 92 S.Ct.
2726, 33 L.Ed.2d 346 (1972). However, in
light of that decision, we have heretofore
upheld the constitutionality of the capital
punishment provisions of the murder statute.
| See State v. Hill, La., 297 So.2d 660 (1974);
State v. Selman, La., 300 So.2d 467 (1974).
Our prior decisions are controlling. This
assignment of error is without merit."
State v. Washington, _ La. __, 321 So.2d 763, 765 (1975).
| II. Petitioner assigned as error the exclusion for cause of
veniremen on account of their conscientious scruples against
capital punishment:
"The exclusion of veniremen with conscientious
scruples against capital punishment deprived
appellant of his Sixth Amendment right to a
representative jury.” (Assignment of Error No.
13).
"The Test of Exclusion Used Below Failed to Sat-
isfy the Minimum Standards for Death-Qualification
Required by the Constitution of the United States
as Construed in Witherspoon v. Illinois, 391 U.S.
510 (1968)." (Assignment of Error No. 18).
- 22 -
mm TP
* * |
A majority of the Supreme Court of Louisiana rejected this argu-
ment on its merits:
"The . . . [petitioner] argues, however, that
the fourteen jurors were improperly excused
in violation of Witherspoon v. Illinois, 391
U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.
In the present case, .. . we note that the
prospective jurors were informed during voir
dire examination that the sentence for first
degree murder was death. They were then
questioned concerning their attitude toward
Capital punishment. In the light of the record,
therefore, we assume that the holding of Wither-
spoon v. Illinois applies.
We have examined the record in the present case.
Each of the excused jurors was questioned at
length by the State and, in most instances, by
the trial judge. The prospective juror was ex-
cused for cause only when the testimony made
clear that under no circumstances could he re-
turn a verdict of guilty of first degree murder
or that his fixed opinions prevented an impartial
determination of guilt based upon the evidence.
We conclude that this assignment of error lacks
merit."
State v. Washington, supra, 321 So.2d at 765-766.
Ill. Petitioner filed a pretrial "Motion to Suppress Confession
and Item of Evidence Seized As a Result of the Confession,"
alleging that his confession and “a certain item of evidence
{that]) was subsequently recovered" should be suppressed because
“such evidence [was] seized in violation of . .. [petitioner's]
rights as guaranteed by the Fourth, Fifth and Sixth Amendments
of the United States Constitution." Following a hearing, peti-
tio: *r's motion was denied, M.S.T. 48, and both the pistol, T.
318, and the written confession, T. 283, were introduced at trial,
over objection. Petitioner made the following assignments of
a £2 «=
“The trial court erred when it denied
defense counsel's motion to suppress."
(Assignment of Error No. 4).
"The lower court erred when it failed to
suppress the written confession of the
defendant ... ." (Assignment of Error
No. 14).
"The lower court erred when it admitted
State exhibit 13, the alleged murder
weapon." (Assignment of Error No. 16).
Supreme Court of Louisiana rejected these contentions:
"The . . . [petitioner] argues that, prior
to making the confession, the defendant was
not effectively apprised of his rights as
enunciated in Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
and that the confession was given ‘under
grave duress, coercion and fear.'
- « - [Petitioner] also argues that the
defendant's written confession was the
product of an earlier inadmissible oral
confession. The record does reveal that
the defendant was questioned during the early
morning hours of July 5, 1973. Although the
record is not altogether clear, we assume
arguendo that the defendant made an earlier
inculpatory statement to Deputy Coleman. .. .
{t]he Miranda warnings given in conjunction
with the taking of the written and oral con-
fessions were adequate to enable the defendant
to make an informed waiver. We conclude that
the confessions were not infected by the
assumed earlier statement.
Hence, the ruling of the trial judge was
correct."
State v. Washington, supra, 321 So.2d at 767-768.
- 24 -
REASONS FOR GRANTING THE WRIT
I. THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER WHETHER THE IMPOSITION AND
CARRYING OUT OF THE SENTENCE OF DEATH
FOR THE CRIME OF FIRST DEGREE MURDER
UNDER THE LAW OF LOUISIANA VIOLATES
THE EIGHTH OR FOURTEENTH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES.
On January 22, 1976, the Court granted certiorari in
Roberts v. Louisiana, No. 75-5844, to consider a similar
question.
The Court has previously been presented with the
ergeniete that the Louisiana capital procedures in an "“aggra-
vated rape" prosecution pursuant to La. Rev. Stat. Ann. §14:42
(1974), entail the kind of arbitrary selectivity (due to
unregulated prosecutorial discretion, plea bargaining,
and executive clemency) that violates the principle of
16/
Furman v. Georgia, 408 U.S. 238 (1972). The procedures for
i7/
imposing the death penalty for first degree murder contain simi-
lar flaws and also explicitly allow unfettered sentencing discretior
16/ These arguments were presented in the Petition for Certiorari
filed in Selman v. Louisiana, No. 74-6065, (filed Feb. 24, 1975).
Pages 17-30 and 42-43 of this Petition are attached hereto as
Appendix B.
17/ Prior to 1973, Louisiana had not recognized degrees of
murder. In that year, La. Acts 1973, Act 109 (amending La. Rev.
Stat. Ann. §14:30 (1967)), defining the capital crime of first
degree murder, La. Acts 1973, Act 110 (amending La. Rev. Stat.
Ann. §14:29 (1967)), dividing “criminal homicide" into four
grades (first degree murder, second degree murder, manslaughter,
and negligent homicide), and La. Acts. 1973, Act 111 (enacting
La. Rev. Stat. Ann. §14:30.1), defining a new non-capital crime
of second degree murder were enacted.
e 98 «
on the part of the jury (although the provisions allowing the
jury to recommend a life sentence as punishment for a capital
1s/
charge were repealed), since in every first degree murder
case, regardless of the facts, the jury is instructed that it
may render a "responsive" verdict of guilty of second degree
murder or manslaughter, with non-capital consequences. La. Code
Crim. P. Ann. art. 814 (A) (1)(1975 supp.).
The importance of this Court's grant of certiorari in
Roberts v. Louisiana, No. 75-5844, Jurek v. Texas, No. 75-5394,
Greag v. Georgia, No. 74-6257, Proffitt v. Florida, No. 75-5706,
and Woodson v. North Carolina, No. 75-5491, is highlighted by
18/ At the time of Furman, article 817,La. Code Crim. Proc.
Ann., provided:
"In a capital case the jury may qualify its
verdict of guilty with the addition of the
words ‘without capital punishment’ in which
case the punishment shall be imprisonment at
hard labor for life.
In noncapital cases, any qualification of or
addition to a verdict of guilty, beyond a
specification of the offense as to which the
verdict is found, is without effect upon the
finding."
In 1973, article 817 was amended to provide:
“Any qualification of or addition to a verdict
of guilty, beyond a specification of the
offense as to which the verdict is found, is
without effect upon the finding."
» 9% «
— EE
the recent decision of the Massachusetts Supreme Judicial Court
in Commonwealth v. O'Neal, Mass. P N.E.2d . Mass.
19/
Adv. Sh. (1975) 3502, attached hereto as Appendix D, which
held a “mandatory” death penalty for murder during the course
of a rape, imposed pursuant to Mass. Gen. L. c.265, §2, pro-
hibited by the “cruel or unusual punishments" clause of Article
20/
26 of the Massachusetts Declaration of Rights.
19/ While the O'Neal decision rests on state constitutional
grounds, see also People v. Anderson, 6 Cal.3d 628, 493 P.2d
880, 100 Cal. Rptr. 152 (1972), the Massachusetts court's
reasoning and its discussion of federal precedents is relevant
to this Court's consideration of the question of the Eighth
Amendment constitutionality of capital punishment. "I believe
that analysis of the issues raised in this case under our
State Constitution bears strong resemblance to the analysis
under the Federal Constitution." Commonwealth v. O'Neal, supra,
Mass. Adv. Sh. (1975) at 3504 n.1 (concurring opinion of Mr.
Chief Justice Tauro).
20 / Mr. Chief Justice Tauro and Mr. Justice Hennessey also
relied on Articles 1] 10 and 12 of the Massachusetts Declaration
of Rights (which, collectively, guarantee criminal defendants
due process of law).
e 37 «
— ee ee ee ee eae
II. THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER THE EXCLUSION
FOR CAUSE OF FOURTEEN VENIREMEN ON
THE GROUNDS OF THEIR EXPRESSED
ATTITUDES TOWARD THE DEATH PENALTY
VIOLATED PETITIONER'S RIGHTS UNDER
THE SIXTH OR FOURTEENTH AMENDMENT
TO THE CONSTITUTION OF THE UNITED
STATES.
A. The Test of Exclusion Applied by the Court Below
Did Not Meet the Minimum Standards Required by the
Constitution As Construed in Witherspoon v. Illinois,
391 U.S. 510 (1968).
During the selection of petitioner's jury, the State
was permitted to challenge for cause fourteen veniremen because
of their expression of conscientious scruples against the death
2Y
penalty. The Supreme Court of Louisiana assumed that Wither-
spoon v. Illinois, 391 U.S. 510 (1968) was applicable to
Louisiana's “mandatory” death penalty procedures, but it ruled
that the requiremei.cs of Witherspoon had not been violated:
“Each of the excused jurors was
questioned at length by the State and,
in most instances, by the trial judge.
The prospective juror was excused for
cause only when the testimony made clear
that under no circumstances could he re-
turn a verdict of guilty of first degree
murder or that his fixed opinions prevented
an impartial determination of guilt based
upon the evidence."
State v. Washington, __La.__, 321 So.2d 763, 766 (1975).
2Y The fourteen veniremen excluded for cause on account of
capital punishment scruples were: Monroe Douglas, J.S.T. 153-155;
Harold E. Crow, J.S.T. 156-160; Steve Hill, J.S.T. 255-256;
Floyd A. Williams, J.S.T. 269-270, 275, 276; Roy A. Mongrue, J.
S.T. 272-273, 275,276; James T. Breaux, J.S.T. 273-274, 275, 276;
Ronald L. Brown, J.S.T. 271-272, 274; William M. Carter, J.S.T.
304-305; James Smith, J.S.T. 313-323; James G. Volta, J.S.T. 377-
378, 380; Alvin J. Folse, J.S.T. 378-380; A.J. Schillacti, J.S.T.
456-460; Haywood J. Jackson, J.S.T. 519-520; Edward W. James,
J.S.T. 655-656. The full voir dire record of each of these four-
teen examinations is appended as Appendix C, infra.
@ 98 «
Petitioner respectfully submits that this conclusion does not
accurately characterize the voir dire record in this case and
that veniremen were in fact excluded who merely “voiced general
objections to the death penalty or expressed conscientious or
religious scruples against its infliction.” Witherspoon v.
Illinois, supra, 391 U.S. at 522.
First, a great many of these exclusions were based on
nothing more than a venireman's vague and general opposition
to the death penalty and not on a clear and firm statement by
the juror that the presence of the death penalty would prevent
him or her from acting impartially or would cause an automatic
vote of "not guilty." When asked if they could return a verdict re-
sulting in the death penalty, veniremen were excluded who answered,
“I don't think I would," "I think I would be real hesitant about
it," "I don't believe I would," and “I don't think I could.”
For exanple, Venireman Monroe Douglas was excluded for cause
on the basis of the following exchange:
"Q. [the district attorney] Do you have any moral
or religious scruples against the infliction
of the death penalty?
A. j[venireman Douglas]: Well, that's kind of a hard
question.
Q. It's a hard business.
A. Now, it tends into that.
Q. I'm sorry, I can't hear you very well.
A. It tends into that and what's been done about it.
Q. Well, I'm asking you, sir, if you were convinced
of the guilt of an accused beyond any reasonable
doubt, any accused who was charged with a capital
crime, could you consider a verdict of guilty
knowing that it would carry the death penalty or
are your scruples against the death penalty so
strong that you wouldn't even consider that?
That's what I'm asking you.
A. I wouldn't want to put a fellow to death.
- 29 «
Q.
A.
Are you telling me then, sir, that regardless
if you were chosen on this jury, that regardless
of what the evidence from that witness chair
showed that you would not even consider a
verdict of guilty knowing that it would carry
the death penalty?
See, my bible tellsme, "Thou shalt not kill.”
I'm a Baptist.
Yes, sir, but I would like for you to answer my
question yes or no. Would you under any circum-
stances ever vote for the death penalty?
No, sir, I don't think I would.
That is, regardless of what the evidence from
this witness chair may show, you would not vote
for a verdict that would necessarily carry the
death penalty?
No, sir, I don't think so."
J.S.T. 154-155 (emphasis added). Venireman Harold E. Crow was
excluded for cause on the basis of the following exchange:
"MR,
A.
SMITH [for the State]: Mr. Faucheavx, do you
have any religious scruples against the death
penalty?
FAUCHEAUX: No, sir
SMITH: I take it .. . how about you, Mr.
Made re?
MADERE: No, sir.
SMITH: Mr. Crow?
CROW: Well, I think I would be real hesitant
about it.
Well, now, y really didn't answer that
question. All of us might be hesitant. If
you were chosen as a juror, sir, you would take
an oath to perform your duty. I'll phrase the
question to you as I phrased it to Mr. Douglas.
Are you telling me, sir, that while you have
these scruples, that regardless of what the
evidence showed from the witness chair, that
you would never under any circumstances vote for
a verdict knowing that that verdict would
necessarily carry the death penalty?
I don't believe I would."
J.S.T. 156-157 (emphasis added). Venireman Steve Hill was
excluded for cause when he stated:
"I don't think I could vote to take a man's
life, no, sir. A life sentence, maybe, or
something like that.”
J.S.T. 255 (emphasis added). Venireman Alvin J. Folse was
°° ©
=
excluded for cause on the basis of the following exchange:
"MR. FOLSE: I don't believe in the death penalty
either.
Q. [the district attorney]: I'll ask you if you
have religious, moral or conscientious
scruples against the infliction of the death
penalty?
A. It's my feeling.
Q. Sir?
A. It's just my feelings, personal feelings.
Q. How long have you had those feelings?
A. I've always had them.
Q. Then I'll ask you the same question I asked
Mr. Volta. Are your feelings against the
death penalty so strong that you would not
even consider rendering a verdict or voting
for a verdict that necessarily would carry
the death penalty regardless of what the
evidence showed?
A. I don't think I could.
Q. You don't think you could even consider it, is
that right?
A. Yes.
Q. In other words, what I'm trying to get at, if
you will answer it plain, sir, is if you would
not consider the death penalty at all regardless
of what the evidence showed?
A. I don't think I could.”
J.S.T. 378-379 (emphasis added).
Second, veniremen's scruples against the imposition of
capital punishment in all circumstances were not made “unmistak-
ably clear," as required by Witherspoon v. Illinois, supra, 391
U.S. at 522, n.21, in the absence of an instruction by the trial
court that it is the civic duty of each venireman tosit as a
juror if he possibly can. As this Court declared in Boulden v,
Holman, 394 U.S. 478, 483-484 (1969): "it is entirely possible
that a person who has ‘a fixed opinion against’ or who does not
‘believe in' capital punishment might nevertheless be perfectly
able as a juror to abide by existing law -- to follow conscien-
tiously the instructions of a trial judge and to consider fairly
the imposition of the death sentence in a particular case." A
venireman must be instructed that the law requires him to
>
-
@ e |
“subordinate his personal views to what he .. . [perceives]
to be his duty to abide by his oath as a juror and to obey the
law of the State,” Witherspoon v. Illinois, supra, 391 U.S. at
514-515 n.7. Although a number of the excluded veniremen here
stated that they would “automatically” vote against a verdict
which entailed the imposition of a death seatence none of them
was given any instruction on their duty to subor: inate their
beliefs to the law of Louisiana that would be given them by the
trial court. See, e.g., J.S.T. 269-270 (exclusion for cause of
venireman Floyd A. Williams); J.S.T. 272-273 (exclusion for
cause of venireman Roy A. Mongrue); J.S.T. 274 (exclusion for
cause of venireman Ronald L. Brown).
Moreover, the voir dire was in some cases simply too brief
to determine with “unmistakable” certainty, Witherspoon v. Illinois
supra, 391 U.S. at 522 n.21, that a venireman was properly ex-
cluded. For quick and seemingly unequivocal answers to questions
concerning the death penalty often do not reveal a venireman's
true sentiments. Here the trial court never instructed the
veniremen that they would have no role in sentencing, and
that they would be instructed upon a number of “responsive
verdicts" which did not entail imposition of the death penalty;
the veniremen thus were left in the dark as to their exact
role. Had they understood that sentencing was not their
responsibility and that they would be able to return a
number of different guilty verdicts,it is possible that they
might have been able to serve. But the perfunctory voir
dire examination did not pause to enlighten them. See,
e.g-, J.S.T. 377-378 (exclusion for cause of venireman
© 32 -
James G. Volta. Cf. J.S.T. 655-656 (exclusion for cause of
venireman Edward W. James).
Finally, a number of veniremen who expressed honest doubts
about whether they could return a capital verdict nevertheless
were pressured into giving a “yes” or “no" answer which could
not accurately reflect their ambiguous feelings toward capital
punishment. See é€.g., J.S.T. 313-323 (exclusion for cause of
venireman James Smith); J.S.T. 456-460 (exclusion for cause of
venireman A.J. Schillaci). A venireman who answers that he
doesn't honestly know whether he could render a death verdict
is candidly and accurately reporting his feelings, and it is
just such veniremen which Witherspoon protects. It is impermissible
to force such jurors to give an unequivocal answer as to whether
they would return a capital verdict. Several veniremen, after
expressing doubts as to their feelings about the death penalty,
were brow-beaten into giving a flat answer as to whether they
could return a capital verdict, and were excluded for cause on
the basis of their answers. Venireman Schillaci, for example,
stated that he had “mixed emotions" about capital punishment,
but that he would not have any problem determining guilt or
innocence; he was excluded for cause despite the fact that he
failed to state unequivocally that he could not return a capital
verdict: ;
"MR. SMITH [for the State): ... [DJo you
have any such scruples against the
infliction of the death penalty?
MR. SCHILLACI: Well, I would have to know the
complete circumstances.
Q. Well, that, sir... [3 dots in transcript]
= 2
A. I don't know how old this boy is or if he's
a hardened criminal or .. . [3 dots in
transcript] I've got mixed emotions about
\ capital - about the death penalty. I'm not
i against it, but I have reservations.
Q. Are you telling me that in a proper case vou
; could consider bringing in a verdict knowing
that it would carry the death penalty?
A. I would be influenced by the circumstances that
prevailed, the individual, the circumstances.
Q. Would that be sympathy for the accused?
A. Not so much sympathy for the accused as a
general belief in humanity and humanness.
I don't want to go into the emotional aspects.
Q. Well, I would like for you to, really. This
is something we need to know.
A. I woulda have to know a lot more than I know
about this individual, what kind of person
he is, what kind of background he has, what
his education is, how old is he, what prompted
the act if he did commit the act.
I really don't know. I'd like to have an
alternative. I don't think I would have any
problem finding a person guilty or not guilty.
QO. But where that verdict of guilty necessarily
imposes the death penalty, would that give
you a problem?
A. It would give me a problem, yes.
Q. Well, is your attitude toward the death penalty,
sir, such that it would prevent you from making
an impartial decision as to the defendant's guilt
where you know that a verdict of guilty would
carry the death penalty?
j A. Frankly, I'm quite surprised to find this boy
so young. I wouldn't have any problems with
a hardened criminal type that had been prosecuted
and in and out of jail or something of this type.
But, really, I would almost have to know some
background. It would be difficult for me to
want to take the life of a person.
COURT: Mr. Schillaci is excused with the court's
thanks."
J.S.T. 456, 460. Venireman James Smith stated that:
“I feel that the death penalty is not, in itself,
is not basically wrong. I believe it's even
necessary in many cases. My main objection is
that I am not sure that the degree of guilt
that I would require to sentence a man to death
is suitable under the terms as the court would
; present them."
J.S.T. 313-314. He stated, however, that he would have to be
extremely convinced of a capital defendant's guilt before he
could return a verdict whose consequence was a death penalty,
id. at 315-316, but he again stated:
"I will say again that I believe capital
punishment is a necessity. I will also
say that I have always, as far as I can
remember, believed capital punishment to
be a necessity.”
Q. [defense counsel] .. . And it is also your
testimony that you are not of the opinion that
the death penalty as per se, is bad or unconsti-
tutional or should not be applied?
A. I also said that.
Q. So that it is your testimony that in some
instances the death penalty would be warranted.
Is that correct?
A. That is correct."
Id. at 318-319. Nevertheless, venireman Smith was badgered by
extensive and repetitive questioning as to his views on the
death penalty and was finally pressured into stating that "the
State's definition of reasonable doubt would not bring...
guilt to a degree that would be necessary for me to convict a
man." Id. at 321. Venireman Smith's subsequent exclusion was
plain error under Witherspoon since this questioning pressured
him into the premature resolution of a difficult issue as to
which he obviously felt great uncertainty.
B. The Exclusion cf Veniremen with Conscientious Scruples
Against Capital Punishment Deprived Petitioner of His
Sixth Amendment Right to a Representative Jury.
In order to avoid subjecting the Court to redundant
argument, petitioner adopts the “Reasons for Granting the Writ"
section of the Petition for Writ of Certiorari to the Supreme
Court of Florida, Hallman v. Florida, No. 74-6168 (filed March
11, 1975) at 72-78 (attached as Appendix D, infra).
—
III. THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER INTRODUCTION
AT PETITIONER'S CAPITAL TRIAL OF
HIS WRITTEN CONFESSION AND OF A
PISTOL WHICH PETITIONER RETRIEVED
FOR THE POLICE VIOIATED HIS FIFTH
AMENDMENT RIGHT AGAINST COMPULSORY
SELF INCRIMINATION WHEN THIS STATEMENT
AND PHYSICAL EVIDENCE WERE OBTAINED AS
A DIRECT CONSEQUENCE OF AN EARLIER
COERCED ORAL CONFESSION WHICH WAS NOT
INTRODUCED,
The Supreme Court of Louisiana has countenanced at a
capital trial, the admission of testimonial and physical evi-
dence obtained by means of a coerced oral confession. While
the court below found petitioner's written statement to be
voluntary and given in conformity with the requirements of
Miranda v. Arizona, 384 U.S. 436 (1966), it failed to recognize
that this confession (and the murder weapon) were the fruits
22/
of an earlier illegally obtained confession. Moreover, the
Louisiana Supreme Court applied an erroneous “totality of the
circumstances" test to determine that this evidence was
admissible and implicitly held that later Miranda warnings
erased the consequences of earlier duress and coercion. Here,
22/ Cf. Stein v. New York, 346 U.S. 156, 185 (1953):
"The limits in any case depend upon a
weighing of the circumstances of pressure
against the power of resistance of the
person confessing. What would be over-
powering to the weak of will or mind
might be utterly ineffective against
an experienced criminal."
— 2
the will of a legally unsophisticated, young, and frightened
defendant, charged with a heinous crime and unadvised by
counsel, was overborne during an intense stationhouse inter-
rogation,and a statement was obtained from him which, though
not introduced at trial, led the police to other evidence
and was used to elicit from petitioner a second written
confession which was introduced. Significant questions are
presented as to the admissibility of evidence obtained as a
result of a coerced confession.
The record below, see pp. -21 Supra, reveals that peti-
tioner was a black, “not very bright,” San. T. 18, semiliter-
27
ate twenty-year-old, who had a fourth grade, M.S.T. 33, or
23/ Petitioner testified that "I can read a little bit but
I can't quite understand. Some things I can understand and
some things I can't @ad it and then understand it." M.S.T. 34.
When petitioner was asked to read his written statement (the
police had testified that after they transcribed his state-
ment, they read it back to him and then gave it to him to
read, M.S.T. 95), the following occurred (this reading should
be compared to the written statement, quoted at pp. 19-20,
supra):
"If you can't read a word advise the court
that you can't read a word and then skip on
to the next word.
JOHNSON WASHINGTON, JR. (cont'd with document)
The following is a true of Johnson Washington,
Jr. (and I don't know this word here) Fifth, 30,
born in and 18 Kittona. Dis is in - of on the night
of July 4, 73. Rudolf Johnson and myself went to
the Night Cap Lounge, to the Night Cap, to the
Night Cap to hop. I give a dollar bill to (what's
that name, I don't know) and he give me 50 cents
back. Rudolf, Rudolf, a $5.00 bill and went and Sat
at a back table, a table a little while. Rudolf
asked for his change, to give him his change. I
left and went to the bathroom. When I came back
Rudolf and ------ was fighting. Jimmie Scott and
me tried to the fight up but I went outside and,
and, her husband and her hand put a gun on us.
ee = 37 =
"6th or 7th grade," San. T. 33, education, and who had attend-
the state Leesville School for the Retarded for about three :
years, San. T. 18, 27. The Louisiana Supreme Court concluded
that "“(tjhere can be no doubt that .. . [petitioner] was of
low intellect." State v. Washington, _La.__, 321 So. 2d 763,
767 (1975). He apparently had no prior criminal record. Late
on July 4, 1973, he was arrested for a particularly heinous
crime: the murder of a white police officer. The Parish was
23/ cont'd.
Someone calleded why this was, why this was
going on. %® short while later he waikeded
inside the § rr to, to, tell, to tell, to,
told someone. He stayed inside for a while
then come, then come out and asked who, whe
was ‘Pops’. I said I was 'Pops'. The he
Then he, he said he would like to tell, to
tell, tell to Rudolf and you. The, the, the
went back inside to, to get I guess he wanted
to tell, to two or three of us at once. When
the came back outside he was by hisself. I
guess he, I guess he couldn't find - he walked
to the and open and opened it and got out and
got out gun. He walkeded on the side of it with
the gun. We was telling, we were telling to each
other. He told me, he told me, e,e,e,e,e,e€,e,
told me, he didn't want any--he just wanted us
to------ then my-then my dad, Johnson Washington,
S., and James Washington, Rudolf Johnson, they all,
they all, they all trieded to trieded to, trieded
to, trieded to, trieded to the gun away from the
while my, my dad, James Rudolf were fighting with
the the the the gun went off, the gun went off in,
in, in, in, in, air, the air. Then, then I to the
side of it he his gun out of it him, him went one
time in the in the, the the for to the James Johnson,
Rudolf Johnson and myself got into the car and of
and, and the and, and the gun. Then I went, then
I went home and her and they came a while after I
had, I had the, and, and, and, and, and, half of on,
on, on the and the to be and the to be to, to, to, the
of lmy... . 1 give it with no---the, the, the,
be in the, be in, in me-- I, I, I, I, dis the, the
is. That is all on here."
M.S.T. 35-36 (the foregoing is a verbatim reproduction of the
transcript).
- 38 -
7
in an uproar: an all-out manhunt was initiated, "{j)ust
about everybody [on the police force] was out there," T. 294,
and a number of arrests were made. Petitioner was forcibly,
M.S.T. 86, arrested at his home by a number of heavily armed
deputies, although they testified that they gave him the
Miranda warnings, see p. 13 supra.
Petitioner was one of at least five persons arrested
for the murder of Deputy Arterbury. The police were uncertain
who fired the fatal shot, and kept asking their prisoners,
"*Who shot? Who shot?'", M.S.T. 70. At the stationhouse,
petitioner was interrogated several times throughout the
night by large numbexs of police officers, see pp. 14-15
Supra, and he appeared “nervous”, M.S.T. 16, “upset", id.,
and "frightened", T. 296. The questioning of the interrogat- |
ing officers was, by their account, "vehement", T. 300. Peti-
tioner introduced evidence, which was controverted by the
24/
State, that he was physically beaten during the course of
24/ The record in this case, althcugh it is frequently con-
fusing and self-contradictory, will simply not support many
of the conclusions of the Louisiana Supreme Court concerning
the question whether petitioner was physically abused. The
court asserts that
“Officers Loque [sic] and Coleman, who
were at the jail during much of the morning
of July 5, 1973, testified that they were able
to view the . . . [petitioner] in his cell
frequently and saw no evidence of intimidation
or physical abuse. Officers St. Pierre and Kimble
testified to the same effect. Officer Gary
Zeringue, who photographed the defendant at about
8:00 a.m., on July 5, 1973, described the...
[petitioner] as looking ‘normal.' Dr. Wilson
Couch, who treated the . . . [petitioner] on
August 1, 1973, saw no signs of physical abuse."
State v. Washington, supra, 321 So.2d at 767.
» 6-
these interrogations, see note 8, supra. At some point during the
early morning hours of July 5, 1973, petitioner gave an oral
statement to the police, admitting his complicity in the murder
24/ cont'd.
Although Zeringue did observe that petitioner looked "normal",
M.S.T. 25, when he photographed him, this occurred not at 8:00
aem., July 5, but instead shortly after petitioner's arrest late
on July 4 when petitioner was brought to the courthouse before the
interrogation began, M.S.T. 23. Zeringue further testified that
this was the only time he saw petitioner in the July 4-5 period.
M.S.T. 25.
Detective St. Pierre and Deputy Kimble did not testify that
petitioner was not physically abused between the time of his
arrest and the time of his formal interrogation at 8:00 a.nm.,
July 5. Detective St. Pierre arrested petitioner at 10:30 or
10:45 p.m., July 4, M.S.T. 75. He turned petitioner over to
officers who took him back to the station house, and "I couldn't
tell you what happened to him after I turned him over," M.S.T. 91.
Detective St. Pierre next saw petitioner “around 6:30 or 7:00 the
next morning, July 5, ibid. Deputy Kimble was present at the time
of petitioner's arrest and drove petitioner to the station house;
he testified that no one “physically abuse[d]" M.S.T. 99, peti-
tioner when he was arrested or when he was transported to the
station house, M.S.T. 100. Deputy Kimble testified, however, that
after he turned petitioner over for booking he had “{no]) further
contact with him," ibid., either "“[t]Jhat night," M.S.T. 101, or
"the next day," ibid.
Dr. Couch testified that he first saw petitioner on August
17, 1973, six weeks after the arrest, and not on August 1, 1973,
B.8.T. 43.
The testimony of Officers Laque and Coleman was contradictory
in several important respects. Laque, the jailer, testified that
he locked petitioner in a jail cell about midnight, M.S.T. 26, and
that each time he made his rounds that night, petitioner was lying
on his bed. M.S.T. 27. Laque stated that he never saw anyone
questioning petitioner that night because questioning never took
place in the jail, ibid., although he admitted that petitioner
could have been removed from his cell in his, Laque's, absence
since the other deputies had a key to the cell, M.S.T. 30. Laque
added that petitioner was in his cell at 8:00 a.m. when he was
served breakfast. M.S.T. 31-32. Coleman testified, however, that
he saw petitioner ten or twelve times during the night in different
rooms at the police station and that petitioner was always awake
when he saw him, M.S.T. 3-4. Shortly after 6:45 a.m., M.S.T. 4,
Coleman elicited an oral confession from petitioner, and he immed-
iately took petitioner to a canal to retrieve the murder weapon.
=—
of Deputy Arterbury. Petitioner also said he would lead the
police to where he had disposed of the murder weapon. He re-
trieved the pistol from a canal and subsequently gave a statement
to the police, apparently recapitulating his earlier confession,
etees he had been given Miranda warnings and had signed a waiver
of his rights.
The trial court made no formal findings of fact concerning
the voluntariness of the written confession, but on the basis of
a pre-trial hearing and of a hearing outside the presence of the jury
at trial, it ruled this confession admissible. T. 283.
Since the State chose not to introduce petitioner's oral confession,
the trial court made no formal findings of facts na@ any ruling
on the voluntariness or admissibility of this earlier confession.
The Louisiana Supreme Court ruled that the written confession
was not infected by any involuntariness of the earlier confession:
24/ cont'd.
When they returned, he took petitioner straight into Deputy St.
Pierre's office at 8:00 a.m., T. 309-311.
Several officers testified that they saw petitioner being
questioned by a large number of people during the night but these
witnesses were consistently unable to recall who the interrogators
were: "“(T)here was a lot of policemen there .... They had a
lot of them there . .. . I couldn't pinpoint anybody that they
had there." (Deputy Walker, T. 256); “They had just quite a few
people in there. I couldn't just tell you right offhand, name
them," (Deputy Coleman, T. 308); "“[{I] don't recall who the
officers were who were in there," (Detective St. Pierre, T. 237).
» 61 «
“the .. . [petitioner] also argues that...
{his] written confession was the product of
an earlier inadmissible oral confession. The
record does reveal that the . .. [petitioner]
was questioned during the early morning hours
of July 5, 1973. Although the record is not
altogether clear, we assume arguendo (25/])
that the .. . [petitioner] made an earlier
inculpatory statement to Deputy Coleman.
The State did not introduce the earlier
statement at trial. Since Miranda warnings
were properly given upon ... [petitioner's]
arrest, we find no basis in the record for
holding that the earlier statement was inad-
missible. Moreover, considering the ‘totality
of the circumstances,’ we hold that the...
[petitioner's] later confession was sufficiently
insulated from the earlier statement. See Clewis
v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d
423 (1967); Darwin v. Connecticut, 391 U.S. 346,
88 S.Ct. 1488, 20 L.Ed.2d 630 (1968).
The record reflects that the . . . [petitioner's]
confession, which was admitted in evidence, was
given sometime later in the morning to Officer St.
Pierre, who had not seen the .. . [petitioner] since
shortly after his arrest. Our earlier analysis
assures us that the Miranda warnings given in con-
junction with the taking of the written and oral
confessions were adequate to enable the...
[petitioner] to make an informed waiver. We
conclude that the confessions were not infected
by the assumed earlier statement.”
Washington v. State, supra, 321 So.2d at 768.
25/ There can be no doubt that petitioner made "an earlier
inculpatory statement to Deputy Coleman" since he led the deputy
to the murder weapon before the written confession was taken.
M.S.T. 5-8; T. 309, 317, 327.
o 4 «
This ruling is manifestly erroneous. It is clear that a
confession which is the direct consequence of an earlier coerced
confession must be suppressed, regardless of how “voluntary” the
second confession appears to be, when considered on its own.
However, the Louisiana Supreme Cou.+ has incorrectly assigned
the burden of proof on the issue whether the second confession
is “sufficiently insulated" from the first. As this Court
recognized long ago,
“after an accused has once let the cat out
of the bag by confession, no matter what
the inducement, he is never thereafter free
of the psychological and practical disadvantages
of having confessed. He can never get the cat
back in the bag ... . In such a sense, a
later confession always may be looked upon as
fruit of the first."
United States v. Bayer, 331 U.S. 532, 540 (1947).
The proper inguiry in this case is not whether the second
confession is voluntary under a "totality of the circumstances"
test but rather whether the State has borne the burden of
affirmatively showing that the second confession is uninfluenced
26/
by the first. As Justice Harlan wrote, concurring in the Court's
26/ Cf. Harrison v. United States, 392 U.S. 219, 225, n.12 (1968):
"when the prosecution seeks to use testimony given after the
introduction in evidence of a confession unlawfully obtained, it
has the burden of proving the defendant's testimony was not pro-
duced by the illegal use of his confession at trial."
e @3 o
judgment in Darwin v. Connecticut, 391 U.S. 346 (1968), another
multiple confession case:
“A principal reason why a suspect
might make a second or third confession
is simply that, having already confessed
once or twice, he might think he has little
to lose by repetition. If a first confession
is not shown to be voluntary, I do not think
a later confession that is merely a direct
product of the earlier one should be held to
be voluntary. It would be neither conducive
to good police work, nor fair to a suspect, to
allow the erroneous impression that he has
nothing to lose to play the major role in a
defendant's decision to speak a second or
third time.
In consequence, when the prosecution seeks
to use a confession uttered after an earlier
one not found to be voluntary, it has, in my
view, the burden of proving not only that the
later confession was not itself the product
of improper threats or promises or coercive
conditions, but also that it was not directly
produced by the existence of the earlier con-
fession.”"
391 U.S. at 350-351. This test was subsequently adopted by the
Court in Robinson v. Tennessee, 392 U.S. 666 (1968) and in
Harrison v. United States, 392 U.S. 219, 225 n.12 (1968) (dictum).
See also Beecher v. Alabama, 389 U.S. 35, 36 n.2 (1967); Clewis
v. Texas, 386 U.S. 707, 710 (1967); Beecher v. Alabama, 408 U.S.
234, 236-237 (1972). The State made no showing here that the
second confession was not a “direct product of the earlier one.”
The Louisiana Supreme Court erroneously concluded that the
Miranda warnings administered before petitioner's written state-
ment was taken were a “‘cure-all'", Brown v. Illinois, __U.S.__.,
45 L.Ed.2d 416, 426 (1975), for the earlier violation of petitioner’
Fifth Amendment rights.
e 46 @
The .357 magnum pistol belonging to Deputy Arterbury was
also retrieved as a direct consequence of the oral confession,
and the question left unresolved in Michigan v. Tucker, 417 U.S.
433 (1974) is thus presented here: does the Fifth Amendment
bar the State from using physical evidence derivatively obtained
as a result of an involuntary confession? The Court emphasized
in Tucker that the failure of the police to warn a suspect of
his right to have counsel appointed if he could not afford to
retain counsel “did not abridge respondent's constitutional
privilege against compulsory self-incrimination, but departed
only from the prophylactic standards . . .laid down by this
Court in Miranda to safeguare that privilege.” 417 U.S. at 446.
The testimony of a witness, whose identity was disclosed to the
police by petitioner Tucker after the deficient Miranda warning
was given, was therefore held admissible.
The present case does not involve violation of simply a
“prophylactic” rule whose purpose is to protect the underlying
privilege or to deter police conduct which invades the privilege.
Instead, petitioner's basic right not to be coerced into incrim-
inating himself was infringed here, a right which is founded not
solely on the unreliability of the evidence cbtained through
coercion:
“It is now axiomatic that a defendant in
a criminal case is deprived of due process
of law if his conviction is founded, in whole
or in part, upon an involuntary confession,
without regard for the truth or falsity of the
confession, . . . and even though there is
ample evidence aside from the confession to
support the conviction.”
a 46 @
Jackson v. Denno, 378 U.S. 368, 376 (1964). The Fifth !
Amendment prohibits the use of involuntary confessions and
their fruits not only because such confessions may be unreliable
our society that important human values are sacrificed where an
agency of the government, in the course of securing a conviction,
wrings a confession out of an accused against his will,” Blackburn
v. Alabama, 361 U.S. 199, 206-207 (1960), and because of the “deep-
rooted feeling that the police must obey the law while enforcing
the law; that in the end life and liberty can be as much endangered
from illegal methods used to convict those thought to be criminals
as from the actual‘ criminals themselves." Spano v. New York,
360 U.S. 315, 320-321 (1959). See also Manness v. Meyers, __U.S.
__, 42 L.Ed.2d 574, 585 (1975).
In Kastigar v. United States, 406 U.S. 441 (1972), a
case involving derivative evidence obtained as a result of an
immunity grant, the Court compared the respective positions of
“a defendant against whom incriminating evidence has been obtained
through a grant of immunity” with “a defendant who asserts a
Fifth Amendment coerced-confession claim," 406 U.S. at 461. It
concluded that the only difference was that the latter defendant
“must first prevail in a voluntariness hearing before his con-
fession and evidence derived from it become inadmissible,“ 406
U.S. at 462. The plain implication is . *, once involuntariness
of a confession is shown, the prosecution must shoulder “the
affirmative duty to prove that the evidence it proposes to use
is derived from a legitimate source wholly independent of the
[confession]," 406 U.S. at 460.
Conclusion
Certiorari should be granted to consider the Fifth
Amendment questions raised by the introduction at petitioner's
; trial of his written confession and of Deputy Arterbury's
pistol.
RESPECTFULLY SUBMITTED,
Vso, < Ben
JACQUES’ F. BEZOU
1304 First National Bank of
Commerce Building
New Orleans, Louisiana 70112
JACK GREENBERG
JAMES M. NABRIT, III
DAVID E. KENDALL
PEGGY C. DAVIS
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
Stanford University Law School
Stanford, California 94305
ATTORNEYS FOR PETITIONER
« 49 «
State v. Washington,
__ba._. 321 So.2d 763
(1975).
.
-_
“4
‘
—_ . —_— . -_-=- ‘ mn le lll a , ow —_
—~
STATE v. WASHINGTON la 163
Cite ax, La.. 321 Sood 1
STATE of Lowistana
v.
Jehnson WASHINGTON, Jr.
Ne. $5806.
Supceme Court of Louisiana.
Oct. 1, 1975.
Defendant was convicted before the
2h Tudicial District Court, Parish of St.
Charles, Thomas J. Malik, J., of first-de-
gree murder, and he appealed. The Su-
preme Court, Sanders, C. J., held that man-
datory death sentence imposed upon de-
fendant, who had been convicted of first-
degree murder of a deputy sheriff, was not
cruel and unusua! punishment nor a denial
of defendant's right to equal protection;
that exclusion for cause of 14 jurors fol-
lowing determination that such jurors
could not return verdict of guilty of first-
degree murder knowing that such verdict
mandated death sentence or that their
fixed opinions on capital punishment pre-
_ vented impartial determination of guilt
based upon the evidence did not violate ban
on exclusion for cause of jurors who
merely voice general objections to capital
punishment or express conscientious or re-
ligious scruples against its infliction; and
that defendant's written confession was ad-
missible. 2
Affirmed.
Tate, J. filed concurring statement.
Calogero, J., filed concurring opinion.
1. Constitutional Law ©=250.3(!)
” Criminal Law C>1213
Imposition of mandatory death sen-
tence upon defendant, who had been con-
victed of first-degree murder of a deputy
sheriff, under first-degree murder statute
was not crue! and unusual punishment nor
a denia! of defendant's right to equal pro-
tection. LSA-R.S. 14:30; U.S.C.A.Const.
Amends. 8, 14.
; {1a}
2. Jury 108
Holding that sentence of death cannot
be carried out if jury that imposed or rec-
ommended was chosen by excluding ve-
niremen for cause simply because they
voiced general objections to death penalty
or expressed conscientions or religious
scruples against its infliction is mot strictly
applicable to exclusion of jurors for cause
under statutory scheme in which sentence
is not “imposed or recoinmended™ by jury.
LSA-C.Cr.P. arts. 798(2), 817; LSA-R.S.
14:30.
3 Jury 108
Although jurors who voice general
objections to capital punishment or express
conscientious or religious scruples acainsi
its infliction may not constitutionally be
excluded for cause, jurors who state they
will not vote for verdict that carries capi-
tal punishment may be so excluded.
LSA-C.Cr.P. art. 798(2).
4 Jury 108
Exclusion for cause of 14 jurors fol-
lowing determination that such jurors
could not have returned verdict of guilty
of first-degree murder knowing that such
verdict mandated death sentence or that
their fixed opinions on capital punishment
prevented impartial determination of guilt
based upon the evidence did not violate
constitutional ban on exclusion for cause
of jurors who voice general objections to
capital punishment or express conscientious
or religious scruples against its infliction.
LSA-C.Cr.P. art. 798(2); LSA-R.S. 14:30.
S. Crimiaal Law €°517.2(2)
Low intelligence alone does not vitiate
waiver of Miranda rights and confession.
6 Criminal Law C>531(!)
In determining whether confession '-
admissible, question is always whether
State has borne its burden of proving ti.
defendant was advised of his rights, that
he voluntarily elected to make statemer™.
Se ne
>
—_-
= ~- ae —
74 le.
and that his confession was otherwise free
} and voluntary.
’ 7. Criminal Law ©C=517.2(2)
Where defendant, who allegedly pos-
- sessed low intelligence, was orally advised
of Miranda rights at time of his arrest,
stated he understood such rights and was
serially questioned as to whether he under-
stood rights waived prior to transcription
of written confession the next morning,
-* and such written confession was, consider-
ing totality of circumstances, insulated
from oral confession alleged to have been
iNegally obtained on night of arrest, writ-
ten confession was admissible.
—— >
Jacques F. Bezou, New Orleans, Garon,
Brener & McNeely for defendant-appel-
lant; David E. Kendail, NAACP Legal
Defense and Educational Fund, Inc, New
York City, of counsel.
William J. Guste, Jr. Atty. Gen. Bar-
bara Rutledge, Asst. Atty. Gen., Melvin P.
Barre, Dist. Aity. Walter L. Smith, Jr.
Asst. Atty. Gen., Norman J. Pitre, Asst.
Dist. Atty., for plaintiff-appellec.
SANDERS, Chief Justice.
The Grand Jury of St. Charles Parish
indicted Johnson Washington, Jr. for the
first degree murder of James Allen Arter-
bury, a deputy sheriff of St. Charles Par-
io ish, in violation of LSA-R.S. 14:30.
Washington, represented by retained coun-
sel, was arraigned and pleaded not guilty
> and not guilty by reason of insanity. He
was granted sixty days to file preliminary
{. pleadings.
Upon a defense motion, the court ap-
' pointed a lunacy commission to examine
the defendant. After a hearing, the court
: found him competent to stand trial.
j On January 31, 1974, the jury returned a
: verdict of guilty as charged. Later, the
trial judge imposed the mandatory death
=
321 SOUTHERN REPORTER, 2d SERIES
sentence. The defendant appeals, relying
on three assignments of error.
The background facts are as follows:
Deputy James Allen Arterbury of the St.
Charles Parish Sheriff's Office answered a
disturbance call at the Nite Cap Lounge in
Killona, Louisiana about 8:30 p.m., on July
4, 1973. Because the crowd became un-
ruly, the deputy returned to his car, called
for assistance, and took his shotgun from
the trunk.
Deputy Arterbury walked toward the
crowd, kceping the muzzle of the shotgun
pointed skyward at all times. The crowd
became more belligerent and surrounded
the deputy sheriff. Someone grabbed the
deputy’s shotgun and it discharged harm-
lessly into the air. Washington then took
the revolver out of the officer's holster
and shot him in the back. The crowd scat-
tered, leaving the fallen officer mortally
wounded.
ASSIGNMENT OF ERROR NO. 1
[1] Prior to trial, defense counsel filed
a motion to quash the indictment alleging
the unconstitutionality of LRS-R.S. 14:30,
the first degree murder statute. The de-
fendant asserts that the mandatory death
penalty constitutes cruel and unusual pun-
ishment under the Eighth Amendment to
the United States Constitution and is a de-
nial of equal protection of the law in viola-
tion of the Fourteenth Amendment to the
United States Constitution.
LSA-R.S. 14:30 reads as follows:
- “First degree musger is the killing of
a human being:
. 7 . .
“(2) When the offender has a specific
intent to kill, or to inflict great bodily
harm upon, a fireman or a peace officer
who was engaged in the performance of
his iawful duties;
* 7 * + . 7.
“For the purposes of paragraph (2)
herein, the term peace officer shall be
" (2a)
= -
BEST COPY AVAILABLE =. |
-—— —- ~~~
i —_- —+ - —_. . oe
a ae ee
STATE v. WASHINGTON le. 165
Cite as, Le.. 321 Se.2d 763
* defined and include any constable, sher-
iff, deputy sheriff, local or state police-
man, game warden, federal law enforce-
ment officer, jail or prison guard, parole
officer, probation officer, judge, district
attorney, assistant district attorney or
district attorneys’ investigator.
“Whoever commits the crime of first
degree murder shall be punished by
death.”
The defendant relics upon Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.
Ed.2d 346 (1972). llowever, in light of
that decision, we .have heretofore upheld
the constitutionality of the capital punish-
ment provisions of the murder statute.
See State v. Hill, La. 297 So2d 660
(1974); State v. Selman, La, 300 So2d
467 (1974).
In State v. Hill, supra, where the de-
fendant had been convicted under para-
graph (4) of LSA-R.S. 14:30, we held:
“The death penalty for murder, when
the perpetrator has the intent to kill or
inflict great bodily harm on more than
one person, is neither barbarous nor dis-
proportionate to the offense. See State
v. Selman, supra; State v. Crook, 253
La. 961, 221 So.2d 473 (1969); 21 Am.
Jur2d, Criminal Law, § 613, p. 563. In
fact, the Due Process Clause of the
United States Constitution sanctions the
death penalty when it is imposed with
due process of law.
“We conclude, therefore, that capital
‘punishment per se is not constitutionally
proscribed.” .
In Hill, we also rejected defense coun-
gel’s equal protection argument, stating:
“As provided in the statute, the death
penalty is mandatory for first degree
murder. Article 817 of the Louisiana
Code of Criminal Procedure, as amended
by Act 125 of 1973, prohibits a qualifica-
tion of the guilty verdict. If the defend-
ant is found guilty as charged, the trial
[3a]
jadge must impose the death penalty.
The penalty cannot be applied in a dis-
criminatory manner. See Furman v.
Georgia, supra; Stete v. Holmes, 263
La. 685, 269 So.2d 207 (1972). It is true
that Article 814, as amended by Act 126
of 1973, lists as responsive verdicts sec-
ond degree murder, carrying a sentence
of life imprisonment, and manslaughter,
carrying a sentence of imprisonment up
to 21 years. See LSA-R.S. 14:30.1;
LSA-R.S. 14:31. The use of these less-
er verdicts, however, is contingent upon
the jury finding insufficient evidence to
convict the defendant of first degree
murder, with which he is charged. The
jury is concerned only with guilt. It has
no sentencing function. LSA-La.Const.
Art. 19, Sec. 9 (1921); LSA-C.Cr.P.
Art. 802.”
Our’ prior decisions are controlling.
This assignment of error is without merit.
‘
ASSIGNMENT OF ERROR NO. 2
During the examination of prospective
jurors, the trial court excused fourteen ju-
rors for cause. In so doing, the trial
judge relied on Paragraph (2) of Article
798 of the Louisiana Code of Criminal
Procedure, which provides that it is good
cause for challenge by the State that:
“The juror tendered in a capital case
who has conscientious scruples against
the infliction of capital punishment and
makes it unmistakably clear (a) that he
would automatically vote against the im-
.. position of capital punishment without
regard to any evidence that might be de-
veloped at the trial of the case before
him, or (b) that his attitude toward the
death penalty would prevent him from
making an impartial decision as to the
defendant's guilt; . . ..”
The defense argues, however, that the
fourteen jurors were improperly excused
in violation of Witherspoon vr. [llinois, 391
U.S. 510, 88 S.Ct. 1770, 20 L.Ed2d 776
~ = _
{
bi
766 le
a me
(1968). In that case, the United States
Supreme Court held:
“. . . [A] sentence of death cannot
be carried out if the jury that imposed
or recommended it was chosen by ex-
cluding veniremen for cause simply be-
cause they voiced gencral objections to
the death penalty or expressed conscien-
tious or religious scruples against its in-
fliction.”
At the time Witherspoon v. Illinois was
decided by the United States Supreme
Court, a Louisiana jury in a capital case
could return a verdict of “guilty without
capital punishment.” The mandatory sen-
tence for such a verdict was life imprison-
ment rather than death. LSA-C.Cr.P. Art.
817. After Furman v. Georgia was decid-
ed, our legislature restructured its capital
punishment provisions to comply with that
decision. The death sentence was autho-
rized for a restricted number of crimes,
but it was made mandatory, thus climinat-
ing the discretion formerly exercised by
the trial jury. See, e. g., LSA-R.S. 14:30;
LSA-C.Cr.P. Art. 817, as amended by Act
S02 of 1972 and Act 125 of 1973. Thus, in
Louisiana, the trial jury now has no role
in sentencing.
[2] We can reasonably conclude that
under the revised procedure, the sentence
is not “i or recommended” by the
jury. Hence, the holding in Witherspoon,
designed to avoid a “hanging jury,” would
not be strictly applicable. ,
In the present case, however, we note
that the prospective jurors were informed
during voir dire examination that the sen-
tence for first degree murder was death.
They were then questioned concerning
their attitude toward capital punishment.
In the light of the record, therefore, we
: assume That the holding of IVitherspoon v.
IUinois applies.
The Witherspoon holding is narrow.
“The Court stated:
Oe -
—— lll —
$21 SOUTHERN REPORTER, 2d SERIES
“The issue before us is a narrow one.
It does not involve the right of the pros-
ection to challenge for cause those pro-
spective jurors who state that their res-
ervations about capita! punishment would
prevent them from making an impartial
decision as to the defendant's guilt. Nor
does it involve the State's assertion of a
right to exclude from the jury in a capi-
tal case those who say that they could
never vote to impose the death penalty
or that they would refuse even to consid-
er its imposition in the case before them.
For the State of Illinois did not stop
there, but authorized the prosecution to
exclude as well ali who said that they
were opposed to capital punishment and
all who indicated that they had conscien-
tious scruples against inflicting it.”
{3] Thus, it is clear that the holding
only bans the exclusion of jurors who
voiced general objections to capital punish-
ment or expressed conscientious or reli-
gious scruples against its infliction. It
does not ban the exclusion of jurors « 0
state they will not vote for a verdict that
carries capital punishment. See Siete v.
Brown, La., 32 So.2d 290 (1974); State
v. Cripps, 259 La. 403, 250 So2d 382
(1971); State v. Pratt, 255 La. 919, 233
So.2d 883 (1970).
[4] We have examined the record in
the present case. Each of the excused ju-
rors was questioned at length by the State
and, in most instances, by the trial judge.
The prospective juror was excused for
cause only when the testimony made clear
that under no circumstances could he re-
turn a verdict of guilty of first degree
murder or that his fixed opinions prevent-
ed an impartial determination of guilt
based upon the evidence.
We conclude that this assignment of er-
ror lacks merit.
ASSIGNMENT OF ERROR NO. 3
This assignment relates to the trial
* court’s refusal to grant the defepse motion
[4a]
‘ee - ———
~ —
to suppress a confession made by the de-
fendant. The defense argues that, prior to
, making the confession, the defendant was
, not effectively apprised of his rights as
enunciated in Miranda v. Arizona, 384 U.
S. 43%, 8 S.Ct. 1602, 16 LEd2d 694
(1966), and that the confession was given
“under grave duress, coercion and fear.”
The three officers present at the arrest,
_* ' Coleman, St. Pierre, and Kimble, testified
: that, on his arrest, the defendant was oral-
ly advised of his Miranda rights (Tr. 14,
73, 99). Both the defendant and his father
indicated that they understood these rights.
Officers Loque and Coleman, who were
at the jail during much of the morning of
July 5, 1973, testified that they were able
to view the defendant in his cell frequently
and saw no evidence of intimidation or
physical abuse. Officers St. Pierre and
Kimble testified to the same effect. Offi-
cer Gary Zeringue, who photographed the
defendant at about 8:00 am, on July 5,
1973, described the defendant as looking
“normal.” Dr. Wilson Couch, who treated
the defendant on August |, 1973, saw no
signs of physical abuse.
Between 8:20 and 9:00 a.m., the defend-
> ant signed a statement acknowledging that
\ he had been advised of his Mirunda rights.
\ During that time interval, he also signed a
confession, which contains a recital that it
was given voluntarily and without any
threats or promises. 5
~ The defense contends, however, that be-
cause of defendant's low intelligence and
. imadequate education, he did not knowingly
waive his rights and had no adequate un-
derstanding of what he was signing.
{5,6] The record reflects that the de-
fendant had an cducation described by his
mother as “sixth or seventh grade.” De-
t. Carl Calvin Westover 0. United States was
consolidated for treatment with Ernesto A.
Miranda ¢. State of Arizona, Michael Vignere
° ‘ wv. State of New York, and State of California
| ~ @ Rey Alien Stewart. Westover is commonly
—_— —
rr er
ie STATE v. WASHINGTON
- Cite as, La.. 321 So.2d 763
le em
le. 767
fendant, himself, described his education as
being “to the fourth grade.” He attended
the Leesville School for the retarded for
about two years. There can be no doubt
that he was of low intelligence. Low in-
telligence alone, however, docs not vitiate
the waiver and confession. See State v.
Edwards, 257 La. 707, 243 So2d 806
(1971); State v. Chinn, 229 La. 984, 87
So.2d 315 (1955). The question must al-
ways be whether the State has borne its
burden of proving that the defendant was
advised of his rights, that he voluntarily
elected to make a statement, and that his
confession was otherwise free and volun-
tary. m
Officer St. Pierre, who witnessed the
signing of both documents, testified that he
first serially questioned the defendant as to
whether he understood the rights waived, a ~
standard method for obtaining an effective
waiver from a person of subnormal imitelli-
gence. The defendant answered each
question affirmatively and then signed the
“Voluntary Statement” form. Officer St.
Pierre testified that he then transcribed
the defendant’s confession as the defendant
related it to him.
The defendant was questioned at the
hearing on the Motion to Suppress regard-
ing his waiver and the confession. Al-
though he denied being given the Miranda
warnings, he testified in substantial accord
with his written confession. He stated:
“Then I moved to the side of the dep-
uty, pulled his gun out of the holster and
shot him one time in the right back side.”
(Tr. $2).
In contending that the waiver executed
here was ineffective, the defense also re-
lies on the Miranda principles set forth in
Westover v. United States, 384 U.S. 4%,
494, 86 S.Ct. 1602, 1638, 16 L.Ed2d 6%,
735 (1866)." Westover had been arrested
cited Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d G4 (1966). However,
it in separately cited here because of the par-
ticular factual circumstances of Westover's
arrest. . ‘
[Sa]
sey oe
* .
—
—
768 la
"at 9:45 p. m., not given any Miranda-type
warnings, and was interrogated throughout
the night and following morning by the lo-
cal police. He was turned over to FBI
agents at noon and confessed two and
one-half hours later. The Supreme Court
found “[no] evidence of an articulated
waiver of rights after the FBI commenced
its interrogation.” In the instant case,
however, the Miranda warnings were given
to Washington upon his arrest and prior to
his confession. The defendant waived in-
dividually each right, both orally and in
" writing.
Westover, therefore, is factually distin-
guishable.
In connection with this assignment, the
defense also argues that the defendant's
written confession was the product of an
earlier inadmissible oral confession. The
record does reveal that the defendant was
questioned during the early morning hours
of July 5, 1973. Although the record is
not altogether clear, we assume orguendo
that the defendant made an earlier inculpa-
tory statement to Deputy Coleman.
{7} The State did not introduce the
earlier statement at trial. Since Miranda
warnings were properly given upon de-
fendant’s arrest, we find no basis in the
record for holding that the earlicr state-
ment was inadmissible. Moreover, consid-
ering tlie “totality of the circumstances,”
we hold that the defendant's later confes-
sion was sufficiently insulated from the ear-
lier statement. See Clewis v. Texas, 386
U.S. 707, 87 S.Ct. 1338, 18 LEd2d 423
(1967); Darwin v. Connecticut, 391 U.S.
346, 88 S.Ct. 1488, 20 LEd.2d 630 (1968).
The record reflects that the defendant's
' confession, which was admitted in evi-
dence, was given sometime later in the
morning to Officer St. Pierre, who had not
seen the defendant since shortly after his
- . ts - - A
321 SOUTHERN REPORTER, 24 SERIES
arrest. Our earlier analysis assures us
that the Miranda warnings given in con-
junction with the taking of the written and
oral confessions were adequate to enable
the defendant to make an informed waiver.
We conclude that the confessions were not
infected by the assumed earlicr statement.
Hence, the ruling of the trial judge was
correct.
For the reasons assigned, the conviction
and sentence are affirmed.
7
DIXON and BARHAM, JJ., concur.
CALOGERO, J., concurs and assigns
reasons.
TATE, J., concurs: As to Bill No. 2, see
my concurring opinion in Stote v. Watts,
320 So2d 146 (rendered this date).
CALOGERO, Justice (concurring).
I concur in the affirmance of this de-
fendant’s conviction and sentence, but I
disagree with the majority's handling of
Assignment of Error No. 2. While the
trial court did indeed excuse fourteen ju-
rors for cause, allegedly because they indi-
cated that they could not vote for the im-
position of capital punishment despite the
evidence of guilt presented by the state,
the record reveals that defense counsel ac-
quiesced in those rulings by the trial court.
No objection, based upon cither Wither-
spoon tv. Illinois, 391 U.S. 510, 88 S.Ct.
1770, 20 L.Ed.2d 776 (1968), or upon Arti-
cle 798(2) of the Code of Criminal Proce-
dure, was made by defense counsel! at the
time the jurors were excused. According-
ly, defendant cannot avail himself of this
alleged error on appeal. Art. 841, C.Cr.P.
See State v. Watts, La., 320 So.2d 146, de-
cision rendered this date.
eee
—
Appendix B
Pp. 17-30 and pp. 42-43 of the
Petition for Writ of Certiorari
in Selman v. Louisiana, No. 74-6065
(filed February 24, 1975).
REASONS FOR GRANTING THE WRIT
i I. THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER WHETHER THE IMPOSITION AND
CARRYING OUT OF THE SENTENCE OF DEATH
FOR THE CRIME OF AGGRAVATED RAPE UNDER
‘ THE LAW OF LOUISIANA VIOLATES THE
; EIGHTH OR FOURTEENTH AMENDMENT TO THE .
CONSTITUTION OF THE UNITED STATES.
_—
-
eee
On June 29, 1972, this Court held that the death penalty
could no longer be-imposed under statutory schemes which permit
its arbitrary, rare, and irregular infliction. Furman v. Georgia,
408 U.S. 238 (1972).. The Louisiana legislature subsequently
7
modified its capitél procedures by abolishing the power of
7 / Eight statutes were enacted to revise Louisiana's capital
punishment procedures after Furman: '
(1) La. Acts 1973, Act 109 (amending La. Rev. Stat. Ann.
j $14: 30 (1967)) defined the capital crime of first degree murcer.
Previously, Louisiana had not recognized degrees of murder;
|
i
|
—— —— eee
(2) La. Acts 1973, Act 110 (amending La. Rev. Stat. Ann.
§14:29 (1967)) divided “criminal homicide" into four grades:
first degree murder, second degree murder, manslaughter, negligent
_! homicide; i
|
, (3) La. Acts 1973, Act 111 (cnacting La. Rev. Stat. Ann.
. || §14:30.1 (1974)) defined a new non-capital crime of second degree
. murder; :
(4) La. Acts 1973, Act 125 (amending La. Code Crim. Proc.
| Ann. art. 817 (1967) abolished the jury's power to qualify a
capital verdict with the words “without capital punishment; "
'
|
(5) La. Acts 1973, Act 126 (amending La. Code Crim. Proc.
' Ann. art. 814 (1967)) defined the verdicts which would be “res-
' ponsive" to a capital charge, omitting the verdicts “Guilty
'‘ without capital punishment" in cases where a defendant is charged
. with first degree murder, aggravated rape, and aggravated kid-
! napping, and adding the verdict of “Guilty to second degree
murder“ in cases where a defendant is charged with first degree
i, murder, ;
fF (6) La. Acts 1973, Act 127 (amending La. Rev. Stat. Ann.
§14:31 (1967)) made a technical adjusiment in the definition of
'. manslaughter;
' al
(7) La. Acts 1973, Act 133 (amending La. Code Crim. Proc.
Ann. art. 598 (1967)) altered the article defining the effect of
» @ verdict of conviction of a lesser offense by deleting the
sentence: “When a jury returns a verdict of guilty without
capital punishment, the defendant cannot thereafter on a new trial
be sentenced to death;*
(8) La. Acts 1973, Act 134 (amending La. Code Crim. Proc. .
Ann. art. 557 (1967)) altered the article prohibiting guilty pleas
to capital offenses by deleting the sentence: “The defendant,
i . - i? -
\ [1b]
. >
‘the jury to make a recommendation of mercy when returning a ‘
capital verdict. La. Acts 1973, Act. 125 (amending La. Code
9
Crim. Proc. Ann. art. 817 (1967)). Consistently with this
7/ Cont'd.
‘with the consent of the district attorney, may plead ‘guilty
without capital punishment.*" °
‘8/ This Court and the Supreme Court of Louisiana had vacated
or reversed numerous death sentences imposed under the State's
pre-Furman procedure. See, @.¢., Sinclair v. Lovisiana, 408 U.S.
-—_—-—
939, on remand sub nom. State v. Sinclair, 263 La. 377, 268 So.2d
514 (1972); Polend v. Louisiana, 408 U.S. 936, on remand sub nom.
State v. Poland, 263 La. 269, 268 So.2d 221 (1972); Singleton v.
Louisiane, 408 U.S. 932, on remand sub nom. State v. Singleton,
263 La. 267, 269 So.2dé 220 (1972); Williams v. Louisiana, 408
U.S. 934, on remand sub nom. State v. Williams,263 La. 284, 268
So.2d 227 (1972); Square v. Louisiana, 408 U.S. 938, on remand
' sub nom. State v. Scuare, 263 La. 291, 268 So.2d 229 T1972);
Louisiona, 408 U.S. 934, on remand sub nom. State v. McAllister,
263 La. 296, 268 So.2d 231 (15972); Strong v. Louisiana, 408 U.S.
i? | Pranklin, 263 La. 344, 268 So.2d 249 (1972); State v. Hayes, 271
So.2d 525 (La. 1973); State v. McCauley, 272 So.2d 335 (La. 1973);
' 363 La. 10l2, 270 So.2d 489 (1972); State v. Refu e, 270 $0.24
842 (La. 1972); State v. Quinn, 288 So.2da 605 (La. 1974).
9/ At the time of Furman, article 817 provided:
ts "In a capital case the jury may qualify its
' verdict of guilty with the addition of the
words ‘without capital punishment’ in which
case the punishment shall be imprisonment at
hard labor for life.
In noncapital cases, any qualification of or
addition to a verdict of guilty, beyond a
specification of the offense as to which the
verdict is found, is without effect upon the
finding.”
After the 1973 amendment, article 817, La. Code Crim. Proc. Ann.
(1974 supp.) provides:
"Any qualification of or addition to a verdict
of guilty, beyond a specification of the
offense as to which the verdict is found, is
without effect upon the finding."
e 18 -
: | [2]
._-——erwwn
, !
modification, the legislature deleted the verdict “Guilty without
’ .capital punishment,” see art. 814, La. Code Crim. Proc. Ann.
(1967), as a “responsive verdict" in cases where the jury is
10/
instructed on one of Louisiana's capital crimes. La. Acts 1973,
‘Act 126 (amending art. 814). The effect of these and related
amendments is to retain the fcllowing "responsive verdicts"
upon which the juxy must be instructed, see pp. 31-41, infra:
On a first degree murder charge -- Guilty,
Guilty of second degree murder, Guilty of
i manslaughter, Kot guilty (art. 814(A) (1),
4 La. Code Crim. Proc. Ann. (1974 supp.)); |
|
it On an aggravated rape charge -- Guilty,
i! Guilty of attempted aggravated rape, Guilty
of simple rape, Not guilty (art. 814 (A) (8),
i} La. Code Crim. Proc. Ann. (1974 sypp.));
M On an aggravated kidnapping charge -- Guilty,
Guilty of simple kidnapping, Not guilty (art.
814 (A) (16), La. Code Crim.Proc. Ann. (1974
supp.)).
ee ee ee re ee eee ee ee =
.
}
| Trial procedures in capital cases were not otherwise altered.
i
|
10/ ‘In addition to the capital crimes of first degree murder
, (La. Rev. Stat. Ann. §14:30 (1974)), aggravated rape (La. Rev.
y Stat. Ann. §14:42 (1974)) and aggravated kidnapping (La. Rev.
Stat. Ann. §14:44 (1974)), Louisiana provides a death penalty
for the crime of treason:
"Treason is the levying of war against the
United States or the State of Louisiana,
ij adhering to enemies of the United States
or of the State of Louisiana, or giving
such enemies aid and comfort.
_-_————— <<
No person shall be convicted of treason
: except on the testimony of two witnesses
to the same overt act, or on his own con-
fession in open court.
‘i Whoever commits the crime of treason shall
be punished by death.”
La. Rev. Stat. Ann. §14:113 (1974). The crime of treason is not
e 309 «
° @ { 2b)
—_——— ll
OE SE SS ~—s
Since petitioner was indicted on two counts of aggravated
rape, his jury was instructed, pursuant to art. 814(A) (8), that
it could find him guilty of aggravated rape, guilty of simple
rape, guilty of attempted aggravated rape, or not guilty. He
was. found guilty of aggravated rape on both counts, and a
death sentence was imposed. On his appeal, the Louisiana Supreme
Court considered the question of “whether the said {1973] amend-
ments removed the infirmities in our law which precluded the
imposition of the death penalty for aggravated rape in Louisiana
'
since Furman v. Georgia. In other words, is the death penalty for
aggravated rape presently constitutionally permissible?" State
10/ cont'd. . i
one for which “responsive verdicts” are defined in art. 814, La.
Code Crim. Proc. Ann. (1974 supp.). Louisiana Code of Criminal
Procedure Annotated article 815 (1967) provides:
"In all cases not provided for in Article
814, the following verdicts are responsive:
_— eee ee ee
(1) Guilty;
(2) Guilty of a lesser and included grade of
the offense even though the offense charged
is a felony,and the lesser offense a mis-
demeanor; or
(3) Not Guilty.”
~——-—-— -
11/ Although the class of capitally punishable homicides
was significantly narrowed by the 1973 Louisiana capital punish- |
ment legislation through the division of “murder” into two
degrees, see note 7, supra, the definitions of aggravated rape,
simple rape, and attempt, see pp.>+4 supra, were nof altered
_in any way. '
=
[4b]
v. Selman, 300 So.2d 467, 472 (La. 1974), App. A at 6a. The
Court answered this question -- with two Justices dissenting --
by os "that the death penalty for aggravated rape is not
per se went and unusual punishment,” ibid., and that the 1973
amendments removed the constitutional infirmities specifically
condemned by Furman v. Georgia:
“[a]s we read the various concurring opinions
in... [Purman v. Georgia], wé consider the
primary objection to the death penalty was in
its administration, wherein it left to the un-
controlled discretion of judges or juries the
determination whether defendants committing
certain crimes should die or be imprisoned.
_ It was this uncontrolled discretion in the
imposition of the death penalty by the judges
or juries for a particular offense which created
a violation of the Eighth and Fourteenth Amend-
_ments to the United States Constitution.
{W]e find no substance in the argument that by
permitting a jury to render responsive verdicts,
there still remains in the jury the uncontrolled
‘@iscretion to impose the death penalty. The re-
sponsive verdicts for aggravated rape are as
follows: guilty, guilty of attempted aggravated
rape, guilty of simple rape, not guilty. The
reason for this argument lacking merit is that
the jury has no discretion in the imposition of
the death penalty for aggravated rape. If the
jury finds under the facts of the case that the
accused is guilty of aggravated rape, the death
penalty shall be imposed. On the other hand,
if the jury finds under the facts of the case
that the accused is either guilty of attempted
aggravated rape or simple rape, they will render
a verdict of guilty for that particular crime.
We must bear in mind that attempted aggravated
rape and simple rape are separate and distinct
crimes with separate penalty provisions for cach.
The fact that death is the mandatory penalty
for aggravated rape but not for the responsive
verdicts of attempted aggravated rape and simple
rape is of no moment. The sole determining factor
as to which penalty will be imposed depends upon
the particular crime for which the jury finds the
accused guilty, if any. Therefore, we conclude
eo Me
] Sb}
that there is no discretion in the
jury for the imposition of the death
penalty where the accused is found guilty
of aggravated rape. “ :
State v. Selman, sup*™21, 300 So.2d at 472-473, App. A at 6a-7a.
This decision presents issues of -sober significance
12/
not only for petitioner and the over sixteen defendants
thus far condemned under the 1973 Louisiana capital punishment
legislation, but also for the viability of the constitutional
principles applied in Furman. Certiorari is appropriate here
to consider three distinct crounds upon which petitioner urges
that his death sentence is a crvel and unusual punishment for-
bidden by the Eighth and Fourteenth Amendments.
12/ State v. Larry Calloway, Orleans Parish Dist. Ct., No.
244,393 (D) (November 14, 1974) (first degree murder); State v.
Billy Monroe, Orleans Parish Dist. Ct., Nos. 243,325 & 243,325
(November 4, 1974) (aggravated rape); State v. Harry Roberts,
Orleans Parish Dist. Ct. No. 241,775(C) (September 19, 1971)
(aggravated rape); State v. Robert Leonard, Orleans Parish Dist.
Ct. No. 74,132 (July 18, 1974) (aggravated rape); State v. Lawrence
Watts, St. Mary's Dist. Ct., No. 74,132 (July 15, 1974) (aggravated
rape); State v. Herbert Nicholson, Orleans Parish Dist.Ct., No.
238,379, (June 28, 1974) (aggravated rape); State v. Charles
Bryant, Ouachita Parish Dist. Ct., No. 36,038 (June 27, 1974)
(aggravated rape); State v. Johnson Washington, St. Charles
Parish Dist. Ct., No. 30,762 (February 7, 1974) (first degree —
murder); State v. Billy Dillard, East Carroll Parish Dist. Ct.,
No. 12,736 (February 23, 1971) (first degree murder); State v.
Sheldon Batiste & Aaron Thomas, St. Landrey Parish Dist. Ct.,
No. 26852 (October 9, 1970) (first degree mirder); State v-
Eddy Foreman, East Baton Rouge Parish Dist. Ct., No. 65,685
(October 10, 1969) (first degree murder); State v. Roy Mejia,
East Baton Rouge Parish Dist. Ct., No. 57,774 (November 2, 1967)
(first degree murder); State v. Joseph Gleason,(received at
Louisiana State Prison on October 21, 1974) (sentenced in Oricans
Parish for aggravated rape) ;State v. Parnell Smith,(received at
Louisiana State Prison on May 28, 1974) (sentenced in West
Feliciana Parish for first degree murder); State v. Gregory
England,(received at Louisiana State Prison on May 30, 1974)
(sentenced in Jefferson Parish for first degree murder).
to]
A. The Perpetuation of Arbitrary Selectivity under the
New Louisiana Capital Punishment Procedure.
The decision of the Louisiana Supreme Court warrants
review insofar as that Court held that Lovisiana's 1973
statutory modifications satisfied the minimum requirement of
Furman v. Georgia: that the penalty of death not be imposed
ke
arbitrarily. For numerous uncontrolled selective mechanisms
continue to operate before, during and after the sentencing
of defendants charged with capital crimes in Louisiana, combining
to produce a wanton and irregular infliction of the most deans:
penalty known to contemporary sonteey with “no meaning ful
basis for distinguishing the few cases in which . . . [the
death penalty] is imposed from-the many cases in which it is
not." Furman v. Georgia, supra, 408 U.S. at 313 (concurring
opinion of Mr. Justice White). coe
13/ The questions presented by sections I(B) and r(c) of this
petition, p- 44 infra, draw upon broader implications of the
Furman decision than the ininimum requirement of non-arbitrariness
stated in the text here. As section I(A) demonstrates, however,
Louisiana's present capital punishment procedure so clearly
violates that minimum requirement as to render consideration of
the broader implications of Furman unnecessary for the disposi-
tion of the case. ;
» 23 <
{7b}
1. Prosecutorial Discretion
ee ee ee ee eee ce
-Article 61 of the Louisiana Code of Criminal Procedure
Annotated (1967) provides that, subject to the limited supervi».on
of the attorney general, “the district attorney has entire charge
_ and control of every criminal prosecution instituted or pending
- @istrict attorney, to determine whom, when and how he shall
in his district, and determines whom, when, end how he shall
prosecute." The Lovisiane Supreme Court has ‘reiterated that
"{ijt is within the exclusive province of the district attorney,
who is vested with full charge and control of ores criminal
prosecution instituted or pending in any parish where he is -|
. prosecute." State v. Collins, 242 La. 704, 138 So.2d 546, 550
i.
(1962). See also State v. JourGain, 225 La. 1030, 74 So.2d 203,
204 (1954); Kemp v. Stanley, 204 La. 110, 15 So.2d 1, 20 (1943)
(on rehearing); State ex rel. Bourg v. Marrero, 132 La. 109,
61 So. 136, 143-144 (1913); Pier 1 Imports, Inc. v. Pitcher,
270 So.2d 228, 229-230 (La. App. 1972). And in recognizing the
unreviewable discretion of the district attorney to initiate
civil nuisance abatement suits, the Louisiana Court of Appeals rea-
soned from the settled criminal, jurisprudence of the State:
"{iJn a civil action such as this, a district
attorney certainly has no lesser latitude ;
of discretion to determine when he shall bring
the action to abate and to control the procecdings
than in any criminal case. We do not agree with
the contention of defendant's counsel that it
was necessary that the legislature set forth
‘any criterion or rules or standards'‘under which
the District Attorney will proceed."
Langridge v. Gassenberger, 183 So.2d 411, 413 (La. App. 1966).
The decisions whether and when it is appropriate to seek and
prosecute a capital aggravated rape indictment -~- or whether and
- 2-
[@b}
" i e es ge? @ “2
t, ” ; °
when it is appropriate to proceed upon available lesser charges
-- thus are committed to the unfettered discretion of the
Gistrict attorney.
The district attorney also has unrestricted freedom ro
terminate criminal prosecutions. Article 691, of the Louisiana
“Code of Criminal Procedure Annotated (1967) provides:
"[t)he district attorney has the power,
in his discretion, to dismiss an indictment
or a count in an indictment, and in order to
exercise that power it is not necessary
that he obtain consent of the court."
This broad power has been frequently recognized. The Louisiana
Supreme Court has held, for example, that a trial judge has no
power to require a district attorney to file a statement of
! reasons when he enters a nolle prosequi:
“ftj)here can be no doubt, of course, that the
: attorney general and the district attorneys
M of the State have absolute discretion to
nolle prosequi any criminal case .. . {S) uch
right has invariably been endorsed by the
decisions of this Court. The broad powers:
vested in the district attorneys have long
been recognized in our adjudications prior to
the inclusion of . .°. [Article 691] in our
Code of Criminal Procedure . .. .‘In all
stages of a criminal prosecution before a
jury is impanclled the prosecuting attorney
i! has an arbitrary control over his indictments,
- and may enter a nolle proseavi as to them,
y at pleasure, without the consent of the
court or of accused.'"
— ee ee
' City of Lake Charles v. Anderson, 248 La. 787, 182 So.2d 70, 71
(1966) (quoting MARR, CRIMINAL JURISPRUDENCE OF LOUISIANA 804
14/ . ss
(1906)). Sec also State v. Mingle, 242 La. 844, 139 So.2d 205,
»
14/ If a jury has been impanelled, however, a district attorney
must secure the consent of the defendant before he dismisses an
indictment. State v. Bracklin, 113 La. 879, 37 So. 863 (1905).
206 (1962) (on rehearing); State v. Broussard, 217 La. 90, 46.
So.2a 48, 50 (1950); State v. Kavanauch, 203 La. 1, 13 So.2a
366, 373 (1943).
Thus, withovt any statutory guidance or judicial control,
a district ettorney is free to elect to charge aggravated rape
or some lesser, non-capital offense on the same set of facts.
This @iscretion is absolute and will inevitably result in an
uncertain and inconsistent selection of defendants to be prose-
cuted on capital charges. As we demonstrate at pp.31-41, infra,
the legal definitions setting off tne capital crime from lesser
ones are amorphous and opaque and their application to specific
factual situations is (as the present case amply illustrates)
largely conjectural. We have no doubt that some measure of .
charging discretion must always be left in a prosecutor's hands;
but where the death penalty is a possible consequence of judg-
ments made in the exercise of that discretion, the minimal '
requirement of the Eighth Amendment as construed in — |
should surely be that the State must take all practicable steps _
to ecatrol and regulate such judgments so as to assure against
the arbitrary selection of some men to die while others in like
factual circumstances are permitted to live. In Louisiana,
there is absolutely no sogularinetion of the prosecutor's
selection among largely overlapping capital and non-capital
‘charges, and a district attorney may act “arbitrarily” in an
Eighth Amendment sense without violating any legal duty. =
oe Be
[10b]
———— —
. ——_—~<
_—-.
—- ~—eemamame «+e «+ +
i
2. Plea Bargaining
Although art. 557 of the louisiana Code of Criminal
Procedure Annotated ‘(1974 supp.) prohibits the entry of a
: 15/
guilty plea to a capital charge, article 558 (1967) provides
that:
“[t}) he defendant, with the consent of the
district attorney, may plead guilty of a
lesser offense that is included in the
offense charged in the indictment."
And article 487(B) (1974 supp.), enacted in 1970, allows a
defendant to plead guilty to an even broader range of offenscs
in exchange for the dismissal of an indictment; it provides that’
the defendant may enter “a plea of guilty to a crime nonrespon-
sive to the original indictment when such a plea is acceptable
i
to the district attorney, and in such case, the district attorney
shall not be required to file a new indictment to charge the
crime to which the plea is offered." State v. Green, 269 So.2d
460 (La. 1972), construed articles 558 and 487(B) together to
decree that a guilty plea is valid if it is voluntarily entered
to a lesser offense “of the same generic class," 269 So.2d at |
462, as that charged in the indictment, although the lesser
crime is not one that would have to be submitted as a “responsive
“—
15/ Article 557 provides: “A court shall not receive an unquali-
fied plea of guilty in a capital case. If a deferdant makes such
a plea, the court shall order a plea of not guilty entered for
him." - :
~
——_— ee ee me mee
a
a ~*
. . *
:
» ‘
. ’
.
»-
.
.
:
verdict” under article 814 at a jury trial:
“[t)he limitations on verdicts which
may be applicable to a trial are not
entirely pertinent to a guilty plea...
Generally, no limitation is imposed on the
guilty pleas which may be entered to a pending
charge, except the requirement that the plea
be to a lesser offense, and that the lesser
included offense be of the same generic class,
not requiring proof of any clement not found
in the major crime charged.”
Id. at 463.
The Louisiana Supreme Court has also approved the practice
_of plea bargaining and has recognized that a “@efendant may
validly have entered a guilty plea, guilty or not, because of
other considerations." State v. Riley, 284 So.2d 557, 558 (La.
1973). Although a district attorney must secure the agreement
16/ :
of the trial court to a sentencing bargain, he has unfettered
power to charge-bargain -- that-is, to agree to accept a guilty
plea to a lesser offense. In the case of a. defendant indicted
for aggravated rape, the prosecutor may accept a plea to simple
rape, attempted aggravated rape, or an assault charge. On the
appeal of a defendant convicted of a annwabies violation, the
Supreme Court of Louisiana ruled that the prosecutor was not
obligated to have reduced the charge or to nave offered appellant
immunity simply because codefendants had received such treatment:
“The matter of the prosecution of any criminal case is within
the entire control of the district attorney . . . and the fact
16/ "“[A)greements made solely by a prosecuting attorney granting
immunity from sentence or assurance concerning the extent ofa
sentence are unenforceable and do not bar subsequent action by the
court. Such agreements gain vitality only when the judge becomes
a party.” State v. Hingle, 242 La. 844, 139 So.2d 205, 206 (1962)
{on rehearing). ‘
———
a oe
——
°-SBSS EB’ See. 52S
— =o
=>
that not every law violator has been prosecuted is of no concern
of appellant.” State v. Jourdain, 225 La. 1030, 74 So.2d 203,
204-205 (1954).
The existence of plea bargaining is pervasive in the
criminal justice system: guilty pleas are said to account for
i7/
up to ninety per cent of all criminal convictions. Since
the harshness of a death sentence creates a relatively great
risk that a conviction will be reversed on appeal for procedural
error, capital cases are particularly likely to involve plea
bargaining:
“'fs)ince time immemorial [prosecutors] will
prefer to get a definite conviction, without
the tremendous expense that goes witha...
‘ [capital] trial, the taking cf a chance that a
jury may not convict, or that some technical
error will be made in the heat of trial which
will result in a reversal by an appellate
court.'” 18/
i
‘
'
;
.
17/ PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION
OF JUSTICE, TASK FORCE REPORT: THE COURTS 9 (1967).
18/ Bedau, Death Sentences in New Jersey 1907-1960, 19 RUTGERS
L. REV. 1, 30 (1963) (quoting opinion of Judge C. Conrad
Schneider, State v. Faison, No. 5-550-57, Bergen Cty. Ct.,
Nov. 21, 1958).
+ mee os eevee © ++:
® .
-
"A promise by the prosecutor of sentence leniency or a charge
reduction as a concession for a plea of guilty is a major
19/
characteristic of the negotiated plea process.” And an
ostensibly “mandatory” death penalty statute is particularly .
likely to produce guilty pleas to lesser included offenses,
since “[m]any prosecutors and judges . . . support the
practice as both necessary and desirable . . . to achieve
sentencing flexibility which would sometimes be prevented by
20/
mandatory sentences.” Many prosecutors
"declare without hesitation that one of
their goals in the [plea} bargaining
process is to nullify harsh, ‘unrealistic’
penalties that legislators have prescribed
for certain crimes." 21/
Prosecutorial "nullification" of this sort is manifestly invited
H
by the wide range of offenses which La. Rev. Stat. Ann. §14:42
(1974) describes as aggravated rape. See pp.31-41, infra.
It is inescapable, therefore, that in the absence of
any standards or procedures which regularize the practices of
district attorneys in accepting guilty pleas to lesser charges,
some defencants indicted for aggravated rape will escape with
sentences less harsh than death while others are eventually
consigned to dic for indistinguishable offenses upon unaccount-
able grounds.
19/ NEWMAN, CONVICTION: TIE DETERMINATION OF GUILT OR INNOCENCE
WITHOUT TRIAL 29 (1966).
20/ Id. at 102.
21/ Alschuler, The Prosecutor's Role in Plea Bargaining,
36 U.CHI. L. REV. 50, 54 (1966).
. .
‘
.
‘ S ~~
‘ , .
‘
. .
. -*
4. Executive Clemency
Article 5, section 10, of the Louisiana Constitution
provides:
“(Whe governor shall have power to grant
reprieves for all offenses against the nw
state; and may, except in cases of im-
peachment, or treason, upon the recommenéa-
tion in writing of the lieutenant governor,
attorney general, and presiding judge of the
court before which the conviction was had,
or any two of them, grant pardons, commute
sentences, and remit fines and forfeitures. ..."
The governor's discretion to spare the lives of condemned felons,
upon proper recommendation,is nearly total.
"The only limitation on the Governor's
commutation power is that he act pursuant
‘to a written recomnendation of commutation
signed by any two of the following: the
lieutenant governor, the attorney general
and the presiding judge of the court before
- which the conviction was obtained. Once this
i! recommendation is received, the Governor
has unlimited discretionary power to commute
an applicant's sentence.”
Geillard v. Cronvich, 263 La. 750, 269 So.2d 231, 232 (1972).
See also State v. Ramsey, 292 So.2d 708, 710 (La. 1974); State
v. Melerinc, 238 La. 847, 116 So.2a 689 (1959); State v. Trist,
238 La. 853, 116 So.2d 691, 697 (1950). And, of course, the
discretion of the lieutenant governor, attorney general, and/or
presiding judge to make or decline to make written recommendations
is equally unbounded. The clemency prevese is effectively immune
from judicial review. ,
'The inevitable result of this Louisiana system of coimmu-
tation is that an arbitrarily selected number of those convicted
of like crimes will be put to death. The chief executive and
{15b]
_—— re oe ee .*
. .
’
.
-
-
.
.
-
those who forward recommendations to him are bound by no criteria
for deciding which among the condemned shall live or die. Their
decisions are unexplained and inscrutable. Standards for review-
ing clemency applications may vary greatly as officeholders are
replaced -- or there may be no standards at all -- though life
and death hang in the balance.
This analysis of Louisiana's pos:-Furman capital punish-
ment procedures demonstratesthat the arbitrary selectivity con-
demned in Furman has been perpetuated notwithstanding formal
statutory amendments. Discretionary opportunities for imposition |
or avoidance of the death penalty are, in fact, as numerous
_ as unregulated as in the pre-June 29, 1972, unvtiees A sub-
stantial question of literally vital importance to petitioner is
thus presented by the Louisiane Supreme Court's affirmance of
his death sentence under the new Louisiana stattory scheme.
o 43 «
116b)
Appendix C
Selected pages of jury selection
transcript showing exclusion for
cause of fourteen veniremen at
petitioner's trial on account of
conscientious scruples against
capital punishment.
of law that I just explained to you that the fact
of an indictment is no evidence of guilt whatsocver?
Can all of you accept thet?
Mr. Hogan, you indiceted that you had some doubts about
that?
HR. HOGAN:
Yec, sir.
Q: Sir? *.
A: Yes, sir.
Q: Would you explain to us what your doubts are?
A: Well, I know that under our system of justice in Aneorica
he is innocent until proven guilty and yet some-
times it gets fixed in our mind that...
Q: Well, do you heve at this time a fixed opinion és to
the guilt of Johnson Washington, Jr., guilt or
innocence?
AL No, I suppose not.
Q: You do not?
As. I suppoze not.
Q: All right. Then I take it, Mr. Hogan, that if you were
chosen on this jury you could do as the law requires
and consider only the evidence that you hear from
that witness chair anc the lew es this court will
charge you tiie law in erriving et a verdict. Could
you do that? e
At Yes, sir. -- + - 4
MR. SMITH: [VENTREMAN MONROE DOUGLAS] }
Now, gentlemen, I have told you that this accused stands
>
153.
charged with the crime of first derree murder.
~ “Under our law that is known or commonly known ac
<— capital cese which means thet a verdict of guilty
of first @egree murcer necescarily... this court
\ 7 hes no discretion... necessorily carrics the death
penalty. Now, do any of you grutlenen have any
religious, conscientious or moral seruples segainst
the infliction of the death penalty to such 4 deeree
that you would not even consider a verdict of
guilty knowing it would carry the death penalty
regerdlicss of whet the evidence showed?
Mr. Douglas?
MR. DOUGLAS:
tes, sir.
Q: Do you heve any moral or religious scruples against the
infliction of the death penalty?
A: Well, that's kind of a hard question.
Q: It's a hard business.
A: Now, it tends into that.
Q: I'm sorry, I can't hear you very well.
A: It tends into that and what's been done about it.
Q: Well, I'm asking you, sir, if you were convinced of
the guilt of an accused beyond any retcsonable dcoudt,
any accused who was charged with a capital crine,
could you consider a verdict of guilty knowing
that it would carry the death penalty or cre your
scruples ageinst the death penalty so strong that
you wouldn't even consider thet? That's what I'm
od
154.
;
~~ *
At
MR.
COURT :
COURT:
155.
asking you.
I wouldn't want to put:a fellow to death.
Are vou telling me then, sir, that regerdless’, if you
were chosen on this jury, that regerdless of what
the cvidence from thet witness chair showed that
you would not even consider a verdict of cuilty
knowing that it would carry the death penalty?
my bible tells me,"Thou shalt not kill." I'ma.
Baptist.
cir, but I would like for you to ansrer my question
yes or no. Would you under any circumstances over
vote for the death penalty?
No, sir, I don’t think I would.
nat is, regardiess or wnat the evidaence rrom tnis
witness chair may show, you would not vote for a
verdict that would necesserily cerry the death penalty
No, sir, I’ don't think so.
SMITH:
Your honor, I'm going to tender him... if the court has
any questions... for cause.
No questions.
BEZOU:
{sic]
I tender him for cause... challenge him for cause.
Mr. Dougles, you're excused with our thanks. Thank
you, sir. Mr. Douglas, the court is going to advise
that you are not allowed to discuss whet was talked
4
ja,
—_—
about in this room until this case is over, sir.
Thank you.
MR. DOUGLAS:
Thank you, sir.
(MR. DOUGLAS LEAVES COURTNOO!)
MR. SNITH:
Mr. Hogan.
MR. HOGAN: ‘.
Yes, cir.
Q: Do you heve any such scruples or religious morals against
* that?
A: No.
Q: In other words, in a proper case you could render 6&
verdict knowing that it would carry the deatn
penalty?
A: Yes, sir.
MR. SHITH:
Mr. FPouchecux, do you have any religious seruples against
the death penalty? :
MR. PAUCHEAU:: aoe
| No, sir.
MR. SMITH:
_I take it... how about you, Mr. Madere?
MR. MADERE:
No, sir. -
MR. SuITH: (VENIREMAN HAROLD E, CROW]
Mr. Crow? ew -*:
4
156.
- Fa
®@ ait ‘ ®@
»* ~»* , . Bo ‘
’ .
Well, I think I would be real hesitant abcut it.
Q: Well, now, you really didn't answer that question. All
of us might be hesitant. If you were chosen @s5 a
juror, sir, you would take en oath to perform your
duty. I'11 phrase the question to you as I phrased
4t to Mr. Douglas. Are you telling me, sir, that
while you Kave these scruples, thet recordliess of .
what the evidence showed from the witness chair,
that you yould never under any circumstances vote
for a verdict knowing that that verdict would
necesserily carry the death penalty?
A: I don't believe I would. 7
MR. BEZOU:
Your honor, if I mey, at this point, I'm going to re-
quest that the State in questioning this witnees,
track the language of Article 798 which, in fact,
tracks the language of Footnote 21 of the Wither-
spoon case which lays the criteria for the situation
plea sks so we can get an accurate determination under the
jurisprudence.
MR. SMITH:
‘Your honor, I don't know that it's necessary that I track
any Article in ry questions as long as I get the
point across to satisfy this court as to the quali-~
fications of this juror with regard to the death
” penalty. I know of no law that says I heve to
track any statute. I have covered everything in
157. | 4
COURT :
Your
MR. BEZOU:
Your
that statute.
objection is vague, Mr. Bezou. What epecifically
do you have reference to in the statute?
honor, actually the language reads that there are
two criteria in the alternative. A says that he
would automatically vote areinst the imposition " @s
of capitel punishment without regard to any
evidence that might be developed at the trial in
MR. SMITH:
Your
BEZOU:
‘the cese before him or that his attitude toward
the death penalty would prevent him from making an
impartial decision as to the defendant's guilt.
a suggest that the language that the State is using
is different then that, is much more definite than
that and does not include the second alternative.
So that's why I ask the State to track his lenguage
according to the Statute. . That's my request, your
honor.
honor, if I may be heard. If I don’t clarify it on
the first grounds, I may go to the second grounds
and clarify it. |
#
‘ ;
-
Because the inference here is that any scruples are -
MR. SHITH:
158.
sufficient and that's not the law. -
4 .
Your honor, that's not what I asked this man. I asked
a
this man if his scruples were so strong that re-
gardicss of what the evidence shoved from that
witness chair he would refuse to vote a Verdict
that he knew would necessarily carry the death
penalty. Now if that's not word for word from that
statute and that's not what it says, then I can't
read and I know of no lew...
COURT: 's
Mr. Bezou, I'm groping but your basic argument... I
agree fully with it. I believe the State does, too.
But I don, t,see any reason why he should verbatin
follow the statute because a layman might not
understand it as easily as the language thet wr.
Smith is using now.
MR. BEZOU:
Your honor, maybe I'm getting a different impression
from what he's seying than what I interpret the
statute to read and I would want it to be as close
as possible because I know this is very important.
COURT:
All right, the State is instructed to follow the statute
as closely as possible.
MR. SMITH: |
Your honor, it's very simple. I just merely want to know
from the juror ir regardless of what the evidence
showed, would he refuse to vote for a verdict knowing
, it would carry the death penalty.
159. er . : ht 7
%
COURT:
OK. Proceed, Mr. Smith.
ad
MR. SMITH:
Would you enswer that question?
MR. CROW:
I don't think I could vote for the death penalty.
Q: Under any circumstances? Regardless of what the evicence
showed from that witness chair? is
A: No, sir.
MR. SMITH:
Your honor, I submit him if the court vents te questicn
him eny further.
COURT:
I think he's satisfied.
MR. BEZOU:
Yes, sir.
~ COURT:
Mr. Crow, you're excused with our thanks.
(MR. CROW LEAVES COURTROOM)
MR. SMITH: |
I take it that the rest of you gentlemen, by your answers,
‘4n a proper case, where you were convinced of the
guilt of the accused beyond a reasonable doubt could
render a verdict knowing it would carry the death
penalty? 3 | z
JURORS : + tae
(Indicate yes)’ | ‘athe . “.
/
> ‘ . >. ms
|
** x
i . Sar . . ®
[VENIREMAN ‘STEVE HILL]
and you were under oath when you sat in the jury
box to tell the truth. You understand that?
MR. HILL:
Yes, sir.
7 COURT:
1 It's my understanding of the conversation with you
fi immediately preceding our noon recess “hen you
in advised me in the presence of the attorneys here ~-,
that you feel at this time that you cannot sit
on this case knowing that a guilty verdict would
require the death penalty for the defendant?
MR. HILL:
I don't think I could vote to take a men's life, no,
sir. A life sentence, maybe, or something like
. | that.
| a COURT:
| And I understand it's your position now that when you
| were questioned prior to being sworn in as a juror
j <a that you did not understand the questions of
counsel and the questions of the court ccncerning
brs capital punishment?
| MR. HILL:
g Well, it was... I was under the impression that capital
punishment was life imprisonment. I didn't think...
: ; . ¥
MR. HILL: : ; . oa
| Well, I thought thet's what it meant.
COURT:
All right. Mr. Bezou, do you have any questions to ask
BEZOU:
No, sir.
COURT:
MR.
No questions?
BEZOU:
this witness... this juror?
No, sir.
COURT :
It is the ruling of this court that the situation ve
find ourselves in now is governed by Article 736,
’ thet the court may at any time before the first
witness is sworn in order a juror removed if it
“4s found even after teing sworn in that he is in-
competent to serve. Incompetence denotes not
qualified as outlined under Article 401 but rather
@ lack of ability or fitness with which to dis-
charge his duties as a juror. Therefore, I will
BEZOU:
allow the challenge by the State for cause and
excuse this juror.
To which ruling I shall respectfully reserve a bill of
= “o
exceptions making a part thereto the challenge for
cause by the State of this juror, Mr. Steve Hill,
the objection by defense to his removal, the
ruling of this court removing this juror pursuant
to Article 796 of the Code of Criminal Procedure,
the testimony adduced from Mr. Hill, the synopsis
of the testinony given to the court and the
SL LL A ly a ee
‘
oe -
-
¢- e
. ® ~*
e -
(VENIREMAN FLOYD A. WILLIAMS]
the infliction of the death penalty to such a derree
that you would not even consider a verdict of guilty
regardless of what the evidence may indicate or
show?
Mr. Williems, do you have any such religious, moral or
conscicntiovs scruples ageinst the infliction of the
death penalty?
MR. WILLIANSS:
No.
You do not?
No.
Q: You could return a verdict of gailty. knowing that thet
verdict would necessarily carry the penalty of
Geath by electrocution?
A: Well, I couldn't say beceuse I haven't heard all of
the evidence. . .
@: No, sir, I'm not speaking about this case. I'm talking
about do you have any particuler scruples or any
strong feelincs against the death penalty that
would prevent you from oven considering imposing
the death penalty in any case?
A: Yes, I have some. Say, for instance, this man he killed
one man, whet's the use in killing him, you know.
I mean, you could just, say, like lock him up, say
for a length of time. 7 : ef
Q: Does this feeling that you have about this case, and I |
assume that would apply to any case, is that right?
A: Yes. : ar ee . \".
4 ‘so 2
‘
269.
s
, ; . a . d 2 . :
e : 0 6* - . e
Q: Not only this case but any case, is that rifht?
A: Yes.
Q: This feeling that you have, Mr. Williams, is ‘it so
strong in your mind that regardless of what the
evidence from this witness chair showed, that ycu,
personally, could never vote for a verdict knowing
that such a verdict would send a man to the electric
chair? Is that correct, sir? ..
A: (Indicates yes)
Q: Is that correct?
A: Yes, sir. "
MR. BEZOU:
Your honer, if I may at this point interject, I would |
ask to clarify the issue if counsel would and I
believe that yesterday counsel was instructed to
track the language, if possible, of Article 798
and ask if the men would automatically vote against
the imposition of capital punishment without regard
to any evidence that might be developed in the
trial in the case before him. If he could phrase
it that way I- think it would solve a lot of problems.
MR. SMITH: .
Your honor, I'm just not going to let this man tell me
“how to run my case.. | !
COURT : “oe i?
I see no objection to the manner in which he is phrasing .
it now, Mr. Bezou. In fact, if either side isn't
very, very clear on this one point, the court is
4
270. ;
going to fo inte it, too, in view of the expericnce
we just had. I don't went to leave any doubt in
anyone's mind. “2
MR. SMITE:
And preperly so, your hono:.
Mc. Willians, I teke it that that is your feeling that .
you just expressed. Is that right?
MR. WILLIAMS:
Yes.
MR. SMITH:
Mr. Grice, do you have any stch seruples? >
MR. GRICE: ) FF ae :
Not against the death penalty.
MR. SHITE:
{[VENIREMAN RONALD L. BROWN]
Mr. Brown?
I don't knOW. Parag, - ; Seat
~-< - ~_e nma— -_-—— <= « -
Sir?
o
A: I couldn't honestly say. ioe
Q: Well, you will have to give an enswer one way or the
other, Mz. Brown. I take it that you have scone
scruples against the Geath penalty?
A: Yes, sir.
Q: Let me phrase it to you this way: Are thete feelings
that you have against the infliction of the death
penalty so strong...
A: I guess so.
E eeethct you would not even..- let me finish my question...
tf
that you would not even consider a verdict, ren-
dering a verdict or voting for a verdict, that
would necessarily carry that death penalty if you
knew that the verdict that you voted for would
necessarily carry the death penalty, which this
one does if he is voted guilty of first degree
murder necessarily carries the death penalty by
electrocution. Would you refuse to even consider -.
that verdict, the imposition of that verdict, or
voting for that verdict regardless of whet the
evidence from that witness chair showed?
A: No, sir. I don't think.
Q: Would you explain what you mean by that, sir. "I don't
think." You don't think what? |
A: I guess if the evidence is strong enough, you know, I
guess I would vote against hin.
Q: I can't hear you, sir. Explain it again.
A: I said if the evidence was etrong enough, I reckon I
would.
Q: You could vote guilty knowing it would carry the desth
. penalty?
A: Yes, sir.
MR. SMITH: ([VENIREMAN ROY A. MONGRUE]
Mr. Mengrue, whet is your feeling about that?
MR. MONGRUE: } . °
In good conscience, sir, I couldn't vote for somebody
‘to die. I couldn't. My conscience wouldn't let
me vote for that. . P
272. : : Progr
Q: Do you say that, Mr. Monzrue, regardless of what the
evidence shows from thet witness cheir? You just
feel that whatever it shows, you would riot vote
for it?
A: I couldn't vote for it, no.
Q: Whatever it shows, you would not vote for a verdict
_ that would necessarily carry...
A: I felt the same way 25 years ego when I was here before...
Q: And you still have those feelings?
A: Yes. :
MR. SMITH: ( VENIREMAN JAMES T. BREAUX]
kr. Breaux?
MR. BREAUX:
i nave mixea feeiings on it 2lso.
Q: Now, mixed feelings, sir, let's go into it a little
further, if we ey. Whet we've got to know, Mr.
Breaux... you see, the law sets the penalty for
first degree murcer. And the penalty set by the
law is death by electrocution. And this court, if
that verdict is returned, this court has no dis-
cretion in the matter. That's the sentence that
must be imposed if the verdict of guilty of first
degree murder is brought back. Now, knowing thet,
I ask you this question: Could you vote for such
a verdict knowing that it would necesserily carry
the death penalty? . |
A: ‘No, I could not vote that way.
Q: Do you say thet regardless of what the evidence showed,
273. ,
- . ~“--. .* -* “_-—-- ~ . -- —— ~e-+< - —- ————*~ =. . > —.
> .
_ Tse)» | ae ;
sir?
At That is correct.
Q: Buh? y
A: That is correct.
MR. SMITH:
Mr. Brown?
MR. BROW:
Can 1 change my mind? °.
Q: Yes, sir?
A: I mean I don't want to lie, I mean but I have the same
feeling. Just because I just can't make a snap
decision, I mean, I can't say, you know... |
Q: In other words, you would not vote for the death penalty
under any circumstances? |
A: That's right.
Q: Regardless of what the evidence might show?
A: Right. — | |
Q: You would just disregard that verdict because of the
fact that it carried the death penalty?
A: I can't see... ‘a. .
Q: Regardless of the evidence thet's shown from the witness
chair?
A: Right.
MR. SMITH: :
Mr. Mongrue, I believe you made yourself very clear on
that. and Mr. Breaux? |
MR. BREAUX: |
That's correct. os St 2 ee -
/ on
, . ;
274. , '
|
MPR. SMITH:
And Mr. Wiiiians?
MR. WILLIANS:
Yes,
MR. SMITH:
sir.
Your honor, at this time I would submit Pr. Williams...
MR. BEZOU:
Excuse me, Fx. Brown, Mongrue an¢ Breaux. Is that rircitt?
MR. SMITH:
Yes,
COURT:
Mr. Bezou.
MR. BEZOU:
Your honor, maybe I missed something. I certeinly heerc
275.
I'm sorry. Mr. Williaas, Mr. Brown, Mr. Mongruc
and Mr. Breaux for cause in that they have statcd
that uncer no cireunstances regerdicss of the
evidence would they even consider bringing in a
verdict of guilty knowing that that verdict would
carry the death penalty.
Mr. Breaux, Mr. Mongrue and Mr. Brown voice thet
opinion and I would agree with the State that they
should be dismissed for cause. However, maybe I
didn't hear what Mr. Williems said but I don't
recall Mr. Williams seying that he would automatically
vote against capital punishment or that under no
circumstances could he return a guilty verdict be-
cause the death penalty was going to be imposed.
——
*
7
*
COURT: .
My notes say thet Mr. Williams said that he objects to
the death penalty. Do you want to go through the
/ notes or do you want to...
MR. BEZOU:
I would like an opportunity to question him, if I may?
COURT:
OK. Concentrate on Mr. Williams. °,,
MR. BEZOU:
Mr. Williams, I'll phrase this as follows: Would you
" automatically vote against the imposition of cepital
punishment, that is, death, without recard to any
‘evidence that might be developed at the trial of
a case before you? |
MR. WILLIAMS:
Not without the evidence, no.
Q: But if, in a hypothetical situation, the State proved
@ case beyond a reasonable doubt in your mind of
first degree murder, in a case like that, could
you vote guilty knowing that a man would be sent
to death?
A: No, I couldn't.
Q: You couldn't under no circumstances?
A: No. :
MR. BEZOU: Be Re : 5
All right. —
COURT:
a
Mr. Breaux, Mr. Mongrue, Mr. Brown and Mr.- Williams, ycu
ak "
276.
-
\
are excused. Gentlemen, this court advises that
you not... just a minute... this court advises
that you not discuss anything that wes heard, over-
heard, questions asked you while you were in this
courtroom until after this case is concluded.
Thank you.
(MR. BREAUX
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.